Right to be forgotten and right to privacy

 · 4 mins read

Right to privacy is an integral part of human life and has got constitutional recognition under Article 21 of the Indian Constitution. The Supreme Court in various judgements have recognized this right as an essential component of life. In A. K Gopalan v. State of Madras1, the term personal liberty was construed narrowly. It only meant physical liberty i.e., freedom from any coercion or physical confinement. However this approach changed during the course of time. In Kharak Singh v. state of U.P2 it was observed that personal liberty is not just limited to bodily restraint but it is used as a compendious term including several rights within it. Thus, it marked the beginning of a tremendous journey towards including several rights under the ambit of privacy. Right to be forgotten is one such recent issue that caught the eyes and attention of all across the country.

In the case of Jorawer Singh Mundy v. Union of India3 the issue before the court was that of right to be forgotten and right to privacy. The facts of the case are that the petitioner is an American Citizen of Indian origin who deals with investment and real estate portfolios. He while travelling in India got caught under the Narcotic Drugs and Psychotropic Substances Act, 1985 however the High Court acquitted him from all the charges. Later on, he started facing difficulties in landing on a decent job as Google India, Google LLC, Indian Kanoon and vlex.in published the judgment and it could be easily used to find out the background verification. Except vlex.in all others retained the judgment even after the petitioner’s request. Thereby he filed the petition to remove the judgment from all these sites. The counsel on behalf of the petitioner relied on the case of Zulfiqar Ahman Khan vs M/S Quintillion Business Media Pvt. Ltd. & Ors.4, which passed an interim order entitling the petitioner certain privacy rights. The Supreme Court directed all the sites to remove the judgment.

The Right to be forgotten appears from the General Data Protection Regulation( GDPR) which prescribes the manner in which data can be collected, distributed or erased. The victim has the right to erase such materials after due examination by the controller as per recitals 65 , 66 and under Article 17.

However it is not possible to approach the court every time to erase the materials when it is widely disseminated by Google, Facebook, or other social media apps.

The Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 as notified by the Government on 25th February provides for establishment of grievance redressal officers for all the intermediaries. By this, people do not have to approach courts for every issue, they can directly communicate to the intermediaries. Rule 3 directs the grievance officer to acknowledge the issue within 24 hours and resolve it within 30 days.

The High Court of Orissa in the case of Google Spain SL & Anr.5 vs. Agencia Espanola de Protection de Datos (AEPD) & Anr. wherein the court referred to European Court of Justice which ruled that “the European citizens have a right to request that commercial search engines, such as Google, that gather personal information for profit should remove links to private information when asked, provided the information is no longer relevant. The Court in that case ruled that the fundamental right to privacy is greater than the economic interest of the commercial firm and, in some circumstances; the same would even override the public interest in access to information.” 6

It would be interesting to see how the Delhi High Court passes the judgment in Jorawor case. Right to be forgotten is of utmost importance. It is generally applied and recognized in the case of juveniles. After rehabilitation they are records are not maintained and not disclosed to anyone. Similarly every victim of a crime and acquitted persons must have this right. As we have seen in the Jorawor case, it is very difficult to be in the main stream society when a person is dragged to court whether acquitted or not. It increases the chance of recidivism or actual Commission of crime even when proved to be innocent in a particular case. Thus, it’s high time that a proper system to be established and maintained for recognizing the right to be forgotten as without it the right to privacy becomes shallow.

  1. IR 1950 SC 27.
  2. AIR 1963 SC 1295.
  3. 3918/ 2021.
  4. CS(OS) 642/2018.
  5. C-131/12[2014] QB 1022.
  6. Lucy Rana & Rima, Right to be forgotten, MONDAQ, (Sept 10, 2021, 7:38 PM), https://www.mondaq.com/india/privacy-protection/1103662/the-right-to-be-forgotten.
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