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