Right to be Forgotten

Right to be forgotten or Delinked is a right where a person can ask the search engine to de-list any certain URL from search, contains his/her name or information which is irrelevant or no longer relevant or excessive. Its aim is to protect user’s privacy and so to protect the information to be misinterpreted or abused. Since it is important for users to control their personal information and details over web, this “Right to be Forgotten” create niche opportunity for right which will delete all personal data related to a particular person and right to delink, which will empowers a person to request the search engine to remove web address from result, when search is on his/her name.

The honorable Delhi High Court on 2nd February 2017 issued a notice to Google and Centre asking them to clear their stand on an emerging Legal frame work called “Right to be forgotten or delinked”. Where Google has replied even if they will delete or block the data from their web address it can be accessible on other search engine. Right to be forgotten emerged from European data protection law. European Court in Google vs. Mario Costajea ordered the Google to remove the links relating to Mario Costeja on its website and hence Right to be forgotten came into existence. Later on it effectively helped the person in controlling their personal information available over web.

In a writ petition honorable Karnataka High Court also endorsed the “Right to be forgotten” and direct that the search made in the sensitive issues involving women in general or higher sensitive case, as cases may be of rape or modesty and reputation of women should not reflect the name of that women.

In another case where honorable Gujarat High Court in a petition said that the publication of a judgment is not against the right of privacy under Art.21 of Indian constitution[1] and it can be published.  Since the judgment coming out the court is essential for the public domain and for the legal machineries to work efficiently, so the publication of judgment is important and it is no where invasive to the fundamental right granted under Art.21[2] of Indian constitution.

The IT Act’s rule no 3(2) of intermediaries guideline also seek the due diligence by the intermediary.  It further in section 79 provides safe harbor provision for intermediaries in the form of due diligence rule. Section 79 also provides that the users on computer should not publish, upload, display, or share any information that is vulnerable for another’s privacy.

As it is a new emerging law, we cannot directly support it without a clear safeguard of it. For adoption and proper implementation of Right to be forgotten we need certain safety measures as follows:

  • A proper legal framework should be drafted as to regard to the introduction and implementation of the right. And also the right must be limited to the sole purpose of protecting personal data.
  • The legislative body must provide comprehensive and clear criteria for governing such right and also should provide data protection legislation. But the human rights and fundamental rights as freedom of speech and expression and access to information should not be ignored.
  • The distinction between what can be de-listed and what cannot, should be clarified and defined De Jure by the honorable apex court.
  • The search engines will have to be very transparent about their internal compliance process. Through a policy, they should publish a transparency report along with the illustration that when and how they will comply with request of de-listing.
  • The scope of right of de-linked must be limited and it should be with the data controller. To avoid the search engine taking ultra vire actions, legislative body must carefully consider the application of right to de-list, which should be an absolute interpretation where the right is limited to one jurisdiction or all jurisdiction, can raise challenge.
  • The user must be assuaged with the help of easy access remedy regardless whether the search engine accept or reject his/her request of de-listing. More than that one should be acknowledged of proper and easy process to challenge the decision at either local or the judicial level.

In 1954, the honorable Supreme Court brought a new right, which was left by our constitutional makers, known as Right to Privacy[3]. Today it is considered as Fundamental Right under Art.21. In the light of right to privacy every individual should get right to seek removal of irrelevant or false personal data or the data which are no longer necessary in the light of purpose for which they were collected or processed from the web search result. If any information which is invading the privacy of a person and have an adverse effect on employment opportunity and the dignity of that person must adhere with the right of de-list or right of forgotten. But since India is new in the globally emerging concept of right to be forgotten or delinked, it is difficult to ascertain so aptly but it can be encouraged that the user in India seeks greater protection of their rights to privacy and its[4] existence will definitely bolster the right of privacy. At the same time India needs an urgent coherent data protection law which will be placed before the right to be forgotten. And here legislative body has to take care of right which must be a part of framework to protect user’s privacy and basic principle of data holding as consent, data minimization, purpose limitation, a right to access, a right to object, and much more.[5]

References:                                                                                                                       

[1] Right to life and personal liberty

[2] Indian constitution, Right to life and personal liberty

[3] A bench of eight judges of the Supreme Court

[4] Right to be forgotten or delink

[5] Access now position paper

Authored By:

Anand – LexisNexis India Student Ambassador

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s