Right to be for­got­ten

If there is some­thing em­bar­rass­ing about you on the net, should you have the right to be for­got­ten on­line?

Alive - - News - by Nam­rata Pahwa

There is grow­ing global de­bate on a new right called “the right to be for­got­ten” or “the right of era­sure”. In May 2014, the Court of Jus­tice of the Euro­pean Union recog­nised the right to be for­got­ten as a part of the fun­da­men­tal right to pri­vacy in the fa­mous Google Case.

With the grow­ing recog­ni­tion of the right to be for­got­ten, the num­bers of re­quests that search en­gines re­ceive for tak­ing down or delink­ing is only likely to in­crease, mak­ing it ex­tremely dif­fi­cult and cum­ber­some to scru­ti­nise such re­quests man­u­ally. Ac­cord­ing to Google’s Trans­parency Re­port, a stag­ger­ing 282,580 right to be for­got­ten re­quests were re­ceived and the search en­gine has eval­u­ated 1,027,495 URLs for re­moval as in July 2015. The trans­parency re­port showed that Google re­moved 41.3% of the URLs it eval­u­ated from its searches, which trans­lates to around 359,803 URLs.

This also raised some con­cerns in Europe that crim­i­nals and for­mer felons might abuse the laws de­signed to pro­tect pri­vacy. With a sub­stan­tial in­crease in the num­ber of re­quests, search en­gines may even con­sider us­ing al­go­rithms to deal with such re­quests in­stead of man­u­ally eval­u­at­ing the pri­vacy rights vis-à-vis public in­ter­est.

So, if there is some­thing em­bar­rass­ing about you on the net, or there is some in­for­ma­tion avail­able that is not re­ally rel­e­vant in the cur­rent day and time but that has the po­ten­tial to harm your rep­u­ta­tion, should you have the right to be for­got­ten on­line?

Com­par­ing with Right to Pri­vacy

The Delhi High Court is cur­rently hear­ing a mat­ter; Laksh Vir Singh Ya­dav vs. Union of In­dia, WP(C) 1021/2016) where the pe­ti­tioner has re­quested for the re­moval of a judg­ment in­volv­ing his mother and wife from an on­line case data­base. The Pe­ti­tioner claims that the ap­pear­ance of his name in the judg­ment is caus­ing prej­u­dice to him and af­fect­ing his em­ploy­ment op­por­tu­ni­ties.

How­ever, Jus­tice Anand Byrareddy of the Kar­nataka High Court qui­etly de­liv­ered a land­mark judg­ment in Sri Va­sunathan vs The Regis­trar, [Gen­eral Writ Pe­ti­tion No. 62038 of 2016] deal­ing with the “right to be for­got­ten” on the in­ter­net in In­dia. In the given case, the daugh­ter of the pe­ti­tioner (re­spon­dent No. 2) had filed a crim­i­nal com­plaint and civil suit, seek­ing a dec­la­ra­tion that there was no mar­riage be­tween her and the de­fen­dant in the said suit and a sub­se­quent an­nul­ment of mar­riage cer­tifi­cate was prayed for.

The par­ties reached a com­pro­mise and the pro­ceed­ings were quashed, how­ever, her name still ap­peared on any search en­gine, re­lated to this case which re­sulted in degra­da­tion of her im­age in so­ci­ety. She there­fore, asked the Court to di­rect the Reg­istry to mask her name com­pletely from the Or­der of the Pe­ti­tion and let it re­main only in the causeti­tle be­fore re­leas­ing it to any third party ben­e­fi­ciary. The High Court made it clear that the web­site of the High Court would still dis­play the cer­ti­fied copy and the same would not be sub­ject to any mod­i­fi­ca­tion and thus, the name would be re­flected in the Or­der. How­ever, it stated that it should be the en­deav­our of the Reg­istry to en­sure that any in­ter­net search made in the public do­main ought not to re­flect the Pe­ti­tioner’s daugh­ter’s name in the cause-ti­tle or the body of the Or­der of Pe­ti­tion.

Sim­i­larly, last month, Jus­tice Shaji P Chaly of the Ker­ala High Court passed an in­terim or­der ask­ing “in­di­ankanoon.org” to re­move the name and per­sonal in­for­ma­tion of a rape vic­tim from Ker­ala

High Court judg­ments re­gard­ing her case, which the site had up­loaded. The woman wanted the ma­te­ri­als dis­clos­ing the iden­tity of the pe­ti­tioner as a rape vic­tim in web­sites be re­moved or hid­den ap­pro­pri­ately to pro­tect her pri­vacy guar­an­teed un­der Ar­ti­cle 21 of the Con­sti­tu­tion.

While im­ple­ment­ing the right to be for­got­ten, a very fine bal­ance has to be struck be­tween the right to free­dom of speech and ex­pres­sion, public in­ter­est and per­sonal pri­vacy.

In­dian courts have al­ways sup­ported the spirit be­hind the right to be for­got­ten like in State of Pun­jab vs Gur­mit Singh, 1996, wherein the Supreme Court had held that “The anonymity of the vic­tim of the crime must be main­tained as far as pos­si­ble through­out.”

Cur­rently, In­dia does not have a com­pre­hen­sive na­tional pri­vacy or data pro­tec­tion law and is fac­ing a sit­u­a­tion where the Union Gov­ern­ment has ar­gued that pri­vacy is not a fun­da­men­tal right. The right to our per­sonal data should be a le­gal right. It is sur­pris­ing how In­dia still does not have any cod­i­fied pri­vacy laws, which are of ut­most rel­e­vance in to­day’s day and age of ram­pant cy­ber crimes.

Pri­vate in­for­ma­tion

There are other caveats to the right to be for­got­ten. For one, if the or­der only asks “Google” to re­move the in­for­ma­tion from its search re­sults, not other search en­gines. The re­stric­tion could also be ge­o­graph­i­cal. Some­one us­ing a for­eign ex­ten­sion of the search en­gine could still find the in­for­ma­tion.

In an in­ter­view last year, Larry Page, Google’s chief ex­ec­u­tive, said that he found the right to be for­got­ten rul­ing im­prac­ti­cal be­cause it forced Google to de­cide what con­sti­tuted pri­vate in­for­ma­tion and what did not. “You guys are now in charge of edit­ing what’s out there in the world,” he said, de­scrib­ing the court’s guid­ance to Google. “In the past that’s not a re­spon­si­bil­ity we felt we had.”

In my opin­ion, In­dia is in dire need of cod­i­fy­ing a mo­tion mir­ror­ing Anti SLAPP (Strate­gic Law­suit against Public Par­tic­i­pa­tion) Laws which refers to the use of lit­i­ga­tion and the court sys­tem to pro­tect sup­press­ing le­gal speech. In other words, one can­not be sued sim­ply be­cause some­one else does not like what one has to say. If their suit does not have merit and they are just us­ing the court sys­tem as a means of si­lenc­ing some­one, they are in vi­o­la­tion of the An­tiSLAPP laws. Such a law would im­mensely ben­e­fit the right to one’s pri­vacy and free­dom of speech.

Newspapers in English

Newspapers from India

© PressReader. All rights reserved.