INTRODUCTION
The Right to be forgotten talks about an individual’s right over the information about her in the public domain, mainly digital world.
The Right, also known as the Right to erasure or delisted emanates from the collage of rights, such as Right to Privacy, Right to publicity, copyright. Just like the freedom of expression contains within it, freedom of not to speak, the right to be forgotten co-exist with the right to publicity.
This Article discusses the debate around Right to be Forgotten while identifying the challenges in its practical application, the interplay with other Fundamental Rights. While highlighting the necessity of the Right in cases such as Rape, the articles explore the possibility whether it can be adopted as a Fundamental Right in India.
Background
The Right to be forgotten was crystallized as a right in 2014 in the landmark judgment of the European Court of Justice where this issue was addressed at length. The ruling established the scope of the right. The Court found that European data protection law gives the right to the individuals to ask the search engines to delist certain results related to the person’s name. However, this Right was not absolute. In 2018, EU adopted a stronger law called General Data Protection Regulation, which replaced the previous law. In comparison to other countries, the European Union is pioneer in recognizing and expanding the Right to forgotten.
Other than the EU, there are other countries, like Russia, Argentina and Philippines that recognize the right to be forgotten in its different elements.
Presently, there is no law in India granting this right; however, the now shelved Data Protection Bill, 2019 of India also had similar provisions.
UNDERSTANDING RIGHT TO BE FORGOTTEN IN THE CONTEXT OF OTHER RIGHTS
To understand the Right to be forgotten, one must first understand the right to publicity. Both rights are connected to the use of one’s image and likeness, but their foundation are different. While one is based on human dignity, other has economic interest. The right to publicity is further differentiated into personal and commercial right. The common denominator in both is the willingness of the person. This connects it with the Right to privacy.
The landmark case of Haelan, 1953 is cornerstone in conception of right to publicity as a property right. The US Supreme Court made clear distinction between the right to privacy and right to publicity as in latter, no harm to personality needs to be proved to decide liability. The development of right to publicity has developed parallel to the celebrity rights.
The internet revolution has blurred the barriers to publicity, both consented or non-consented. In this light, the Right to be forgotten is rooted in the choice of an individual to publicize or not publicize.
EVOLUTION THROUGH CASE LAWS –
The Right to be Forgotten is still in transitory phase. Its origin in legal perspective can be traced to the landmark cases of European Union. In Indian context, the need of this Right was accepted by the Courts in the cases discussed below:
Google Spain SL v Agencia Espanola de Proteccion de Datos, 2014
Facts – Mr Gonzalez, a Spanish national, was aggrieved by the fact that the Google Search results showed a news story on his debt from 1988 even when the matter was now resolved and not relevant.
CJEU’s ruling:
The wordings of the ruling is quite significant to understand the extent of the liability of the operator.
The judgment said: “The operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful.”
Thus, the operator is mandated to erase the information, even if the pages are lawful.
However, the Court limited the Right by restricting it to the above parameters only, and not for information that is relevant for the public interest. Thus, the test of ‘relevance for public interest’ was used to balance the Right to Information and Right to be forgotten.
Google LLC v Commission Nationale de I’Information et des Liberties (CNIL), 2019:
Facts – French Data Protection Agency requested Google to globally remove information concerning a data subject. Google agreed to remove the information only to EU member states.
Judgment – The CJEU acknowledged that the Right to be Forgotten not globally recognized. It said that there is no obligation under the EU law for the engine operator to delist the information on all versions of its search engine globally.
The ruling was hailed as global freedom of expression.
This case is significant as it highlights some of the challenges in implementing this Right. Firstly, there is the issue of balancing the Right of erasure of an individual with the Right of information of others. Secondly, the Right is limited in geographical scope as the Right is not perceived in the same manner universally. Thirdly, the issue of extra-territorial jurisdiction.
Rodriguez v. Google Inc, 2014:
Facts: A civil suit was filed against Google and Yahoo by an Argentinian model for associating her name and images to pornographic websites.
Judgement:
The Supreme Court of Argentina (SCA) ruled that online communication is protected and everyone has right to publish ideas without censorship. However, the Court noted that search engines bear responsibility for providing access to unauthorized or illegal content.
Thus, the judgment puts pressure on the search engine operators not by shifting power of discretion but by emphasising on duty to care.
Jorawar Singh Mundy vs Union of India, 2021:
Facts – Petitioner was an American citizen who had a case against him under NDPS Act. He was acquitted. Since the search engines showed the past details of the case and his name, he was facing difficulty in job hiring. He requested for the information to be deleted from search engines.
Judgment –
The Delhi Court relied on judgment of Puttaswamy vs Union of India, where Right to privacy was recognized as a Fundamental Right under Article 21. The Court held that Right to be forgotten falls under the purview of Right to Privacy, and directed for the information to be erased from the internet.
ISSUES IN THE EXERCISE OF RIGHT TO BE FORGOTTEN
Extra-territorial Jurisdiction
The applicability of this right is limited to the territorial jurisdiction only, as the extra-jurisdictional of others. This was aptly highlighted in the Google vs CNIL case, where the request of CNIL to erase data from all search engines was turned down by the Court. The test that CJEU applied in balancing these rights was whether the approach is compliant with international human rights norms.
However, this creates a paradox. If the information is deleted from google search engine of Europe, but available for internet users in India, then in other words it can be said that the Right to Information of the users in Europe was blocked. The Judicial approach towards the right to be forgotten creates an illusion. The CJEU’s direction shifts the information from ‘available’ to ‘inaccessible.’ Thus, for effective implementation of the Right to be forgotten the extra-territorial jurisdiction need to be explored.
Conflict with other Rights of an individual
In the landmark cases abovementioned, the Court was ginger in its approach towards application of the Right to be Forgotten. It was limited to certain parameters. This careful balancing of the Rights is criticized by many for not letting an individual exercise the Right in absolute manner. Further, how the right is perceived depends upon the political philosophy of that nation. For example, in EU nations, the said Right is given a status of statutory right through the General Data Protection Regulation (GDPR), while in countries, like India, the jurisprudence is still at nascent stage.
The main contention is the serious encroachment on Freedom of speech when the information is truthful, legally available. Further, the Right to be forgotten and right to information are construed differently by different states. The conflict in interpretations give rise to a series of issues having both local and global impact.
Procedural Issues:
The success of the Right as progressive development instead of litigation burden depends upon the ease of procedures enabling the seeker to exercise the right. If we take the example of EU - the GDPR clearly defines the situations under which one can request for erasure of data. The user has to fill out the form on the official site of search engine, supply personal information, a list of URLs to be erased, and legal proof.
The simplicity of the procedure strengthens the Right as it is user-friendly and meets its prime objective – an individual’s control over her information. However, it has its challenges. Going back to the Costeja case again, the CJEU shifted its function and power to the search engine operators. As rightly summarized by some critics, the Costeja case decided that Internet is a new legal world where the relevance of the information for web users does not matter and search engine operators are responsible for judging the relevance and public interest of information. For a country like India, this kind of system has scope of grave misuse. The Roderiguez judgment takes a meticulous approach on the same issue. The SCA puts accountability on search engine operators when information illegal, while when criminality of information is not evident, judges should decide the validity.
Limitations of the Right
Firstly, the right is exercised only in the context of irrelevant, excessive, no longer public interest. It is further limited from the territorial aspect. Further, the intend of the Court is not to eliminate the information from the web, but only from the search engine results. Thus, the Right to be in forgotten in practice is reduced to the ‘Right to be de-linked.’
The compliance can only be ensured when one is able to determine exactly what information and where all it is stored. The limitation of CJEU’s ruling is compared by critics as ‘Not burning books’ vs ‘Google only indexing books.’
Another technicality in the enforcement of the Right is its nature. Here, the right is exercised against an individual or private body. Thus, it will raise the issue whether fundamental rights can be enforced against someone not in the nature of State.
RECOMMENDATIONS –
It is important to crease out the issues before implementing the Right to be Forgotten as a statutory right. Following measures are suggested:
A strong Data Protection law and IT Act that aims at balancing the Right to be forgotten and Right to information. Issues such as unnecessary data retention, unauthorized use of data of consumers to be addressed. Also, a clear distinction between innocent consent and informed consent.
Setting up quasi-judicial body on matters specific to erasure request. The procedural ease in the process should have checks and balance where the intermediaries are made accountable for sharing the unlawful information, but the discretion remains in the hand of the Body.
Need for modernization of present judicial system, where the present laws and interpretation is equipped to meet the challenges of fast changing world and blurring lines of the fundamental and human rights.
To balance the rights, the publishers to be fully involved in the evaluation of a delinking request.
Lastly, need for a uniform and universal application of law. An international consensus on integration of Right to be Forgotten with other human rights is needed. As a scholar pointed out- the delinking in some parts will lead to balkanisation of the internet.
CONCLUSION:
The rights of privacy and freedom and speech are two fundamental ethical principles, but this does not mean that they are always compatible. The right to be forgotten is one such layer that pulls the debate on individual privacy and social right to freedom of speech in opposite direction.
The digital age has brought new kind of challenges and threats that have major impact on legal system. The Right to be forgotten is the product of these challenges. The Courts in India and West have zealously protected the Right to information; however, the unchecked spread of information has become anathema to Right to privacy. In such scenario there is urgent need of modernization of judicial system to meet the modern challenges. This aligns with a recent judgment of Odisha High Court where the sensitive material was posted by a rapist on the internet of the victim. The Court reaffirmed for the need of legislative recognition of the Right to be Forgotten. Also, it emphasized on a mechanism where intermediaries can be reached directly for deletion of such content.
Nevertheless, if we consider the Internet as the most important depository of information in human history, the right of information of our societies and future generations is at risk. Judiciary actions without taking into account these variables may be indeed seriously damaging well consolidated fundamental rights.
REFERENCES
Cases
Google Spain SL v Agencia Espanola de Proteccion de Datos, 2014
Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc, 202 F.2d 866
Jorawar Singh Mundy vs Union of India, 2021
Rodriguez v. Google Inc LLC, 20-cv-04688-RS
Rout vs State of Odisha
Articles:
JOSE MANUEL NARTINEZ and JUAN MANUEL MECINAS, Old Wine in a New Bottle: Right of Publicity and Right to be Forgotten in the Internet, Vol. 8 (2018), pp. 362-380, Penn State University Press, 2018
LUCIANO FLORIDI, “The Right to be Forgotten” – A philosophical view, Annual Review of Laws and Ethics
Trends in Censorship by Private Actors, Media Defence, https://www.mediadefence.org/ereader/publications/advanced-modules-on-digital-rights-and-freedom-of-expression-online/module-5-trends-in-censorship-by-private-actors/right-to-be-forgotten/ (last visited on 26.08.22)
Written by
Vartika Sharma,
Intern
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