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Kerala HC admits ‘right to be forgotten’ plea: Why this may be problematic

The Kerala High Court has admitted a petition from a person seeking the right to be forgotten. Bar and Bench has reported that the court has admitted a plea by a Nikhil S Rajan, who sought the erasure of his personal details from Google search results. This is the latest request by an Indian citizen seeking the obstruction of access to public information citing the right to privacy.

Rajan, a dentist by profession, reportedly contended that when his name is searched on the internet, the first result is a bail order from 2014 containing his personal details. This is despite his subsequent acquittal in the case. The bail order, available on Indian Kanoon’s website (which we are not linking here) also contains the details of the crime, Rajan’s address and father’s name. In his plea, he is also reported have claimed some of the details in this order are erroneous.

Rajan, referring to the Supreme Court’s right to privacy judgement from 2017, claimed the search result infringes on his right to privacy. Per case details on the Kerala High Court’s website, Google India, the Registrar General and the Union of India have been named as respondents.

What is the ‘right to be forgotten’?

The right to be forgotten is often considered a subset of the right to privacy. It is the right to have private information about a person to be removed from the internet, specifically from search results. It is based on the concept of permanence on the internet — that nothing is ever forgotten. This right allows individuals to erase content on the internet that is obsolete, humiliating and generally damaging to their reputation.

The right is said to have originated in the Google Spain case in 2014, when the Court of Justice of the European Union (CJEU) had ordered the search giant to remove links related to data about the forced sale of property to an individual. The court essentially made search engines responsible for the processing of personal data that appears on other websites. The right has since been provided in the European Union’s General Data protection Regulation (GDPR) passed in 2018.

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What’s the discussion in India?

India is yet to recognise the right to be forgotten, although the Personal Data Protection Bill, 2018 did talk about it. The proposed bill did not provide individuals with the right to erasure, but only the right to restrict or prevent information disclosure.

The BN Srikrishna Committee’s report on the bill had proposed that the right be adopted, but not before noting the several pros and cons of such a decision. The report noted that the internet has a “timeless memory”, and hence the ability to forget is seriously denuded.” This, it said, was not entirely undesirable, indicating that it would help prevent attempts to rewrite history. At the same time, it said, “The individual’s desire to forget is an expression of autonomy that may be worthy of protection.”

However, the report also noted that the deletion of information could take away individuals’ right to access information as well as infringe upon the freedom of the press. After a detailed analysis of these issues, the committee suggested a five-point system of checks and balances for the enforcement of this right. The applicability of this right would hence depend on the sensitivity of the data; degree of accessibility of the data; whether the person whom this data belongs to is a public figure and the relevance of this data to the public. The committee made it clear that the focus should be on the accessibility of this information, and not the information itself.

The committee had commented on who should be the adjudicator that consider requests under this right. It was critical of the EU, where data controllers (fiduciaries) such as Google are supposed to consider these requests. It said this amounted to “privatisation of regulation”, since private companies would become censors of private speech, indicating at their desire to avoid legal troubles. The committee also suggested that adjudicators who consider these requests should perform a balancing test between removing requested information and the freedom of expression and speech.

However, these suggestions were largely ignored in the subsequent revision and the latest version of the PDP Bill in 2019. This bill is currently under consideration of a joint Parliamentary Committee, which is expected to submit its report in the winter session of the Parliament.

Criticism of right to be forgotten

Since its conceptualisation, the right has attracted criticism on the basis of possible restrictions to freedom of speech. The idea is simple — that the powers that be will use this right to erase unsympathetic content (mainly news) from the internet.

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Sushant Sinha, whose website hosts the bail order that Rajan wants removed from Google search results, believes the implementation of the right in India will inevitability lead to its abuse. “It will be terrible. It essentially means people with power will be able to chase [the courts] and get the decisions in their favour. They will be able to operate in complete secrecy,” he told MediaNama.

Jyoti Panday, researcher, Internet Governance Project, Georgia Institute of Technology who has worked on the subject extensively, noted major problems with the right. Speaking to MediaNama, she said these issues apply not just in India but on a global level:

  • Muddles fight against misinformation: The right to be forgotten, Panday says, does not tackle defamation with the use of false information, but rather allows for the removal of factually correct information. Hence, it is upping the ante for censorship. “So far defamation was contested around your version of reality versus my version of reality. Right to be forgotten takes it a step forward where it allows removal of factual information that you feel damages your reputation.”
  • Not all people have equal abilities: The way it is being structured now and how the Indian legal system works, she says, the right will be used by public figures and those with the ability to file appeals, and not the common public. This is especially true because of how long the the legal system takes to process cases, she says.
  • Impact on public records: Panday says that empowering an individual to erase content that is detrimental to their life may be a good thing, but it might leave a hole in the public record. She takes the example of public officials, whose historic actions remain perpetually relevant due to the nature of their job. She argued that the removal of published works about even private individuals could be against public interest since this information has the potential to become relevant in the future.

Should Indian have this right? Sinha expressed his opposition to the right. However, he suggested that if Indians are to indeed have this right, there needs to be a law that spells out in great detail how it can be used, to prevent any possibility of abuse. If this law fails to do so, Sinha believes, it might be detrimental to freedom of speech and media freedom.

Panday, meanwhile, believes that the Indian legal system is not yet ready for the right to be implemented here. She says India needs to have well-developed systems for data governance, and not just privacy. “If the right is brought in its current form, it will lead to overwrought censorship.”

Also read:

***Correction (November 26, 2020): One of the subheads (“What is the ‘right to be forgotten’?”) had an extra word. It has been removed. 

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