Right to be Forgotten : Indian Scenario

In the digital era of 21^st century access to information is quick and procuring personal information of an individual is easier. This can give rise to various challenges which can compromise the privacy, security and dignity of an Individual. As a result the concept of Right to be forgotten has become more relevant.

Right to be forgotten can be defined as the right which allows an individual to request for removal of his/her personal information/data online.

Verdict of Karnataka High Court:

The first explicit acceptance of right to be forgotten was when the Karnataka high court upheld the right to forgotten while passing the order on writ petition.

About the petition:

• A Women had files the compliant to annul the marriage certificate citing she was not married.
• Later the case was withdrawn after the compromise.
• Aftermath the women’s father approached the High Court to remove the name of his daughter in the digital records maintained by the High Court.
• The petitioner argued that his daughter feared a grave repercussion if her name continues to be associated with the case. The petitioner also feared that it would affect her relationship with her husband and also her reputation in the society.
• Upholding the concerns of the petitioner the Karnataka HC upheld women’s right to be forgotten.

Draft Personal Data Protection Bill 2018:

The draft bill framed by the Justice B. N. Srikrishna Committee has made an explicit reference to the right to be forgotten.  Provisions for right to be forgotten in the bill are:

• Section 27 provides an individual with a right to restrict or prevent continuing disclosure of personal data.
• The bill provides that an adjudicating officer would decide on the question of disclosure and the circumstances in which adjudicating officer thinks such disclosure can override the freedom of speech and the citizen’s right to information.
• The adjudicating officer would decide based on:
  • Sensitivity of the personal data.
  • Scale of disclosure and the degree of accessibility sought to be restricted or prevented.
  • Role of the data principal in public life.
  • Relevance of the personal data to the public.
  • Nature of the disclosure and of the activities of the data fiduciary.

Whether the Provisions Threaten Freedom of Speech:

The draft bill makes it clear that the right to be forgotten is not an absolute right and provides for certain exemptions. The activists of free speech puts forward that the exemptions fall short in upholding the freedom of speech because:

• Section 42 of the bill states that right to be forgotten, are exempted if the purpose of data processing is in the interest of the security of state. The bill mandates the parliament to enact a law in this regard.
• Similar is the case with the exemption under Section 43 where it asks parliament to frame a law wherein the processing of data is in the interests of prevention, detection, investigation and prosecution of any offence or any other contravention of law.
• The Justice B. N. Srikrishna Committee hasn’t suggested the draft law to address the provisions under section 42 and 43. In the absence of such law by parliament there can be severe compromises with the freedom of speech.
• Section 47 provides an exemption for journalistic purpose. The damper here is the journalist must demonstrate that the disclosure is in compliance with code of ethics issued by the Press Council of India, or any media self-regulatory organisation. This provision would provide the adjudicating officer with overarching power as the matter is highly subjective. This would threaten the freedom of press.
• The penalties prescribed for violations are costly and severe.

Constitutional luminaries also comment that the law would not stand the scrutiny of judiciary as the Article 19(2) of the Indian Constitution did not provide “privacy” as a ground for imposing restrictions on freedom of speech. It would be curious to watch how the bill will evolve in the coming times to achieve a fine balance between right to freedom of speech and right to be forgotten.