More power to the right to be forgotten

Updated on Jul 23, 2022 07:39 AM IST

On Monday, a bench of justices Sanjay Kishan Kaul and MM Sundresh found substance in the plea moved by the estranged wife that availability of the names, address and other personal information on the web violate her right to be forgotten, which has been acknowledged as a facet of the right to privacy by the top court in its 2017 landmark judgment.

The court order comes at a time when the growth of the Internet and social media has increasingly blurred the boundaries of privacy, putting out in public domain the most intricate details of human lives.(ANI Photo)
The court order comes at a time when the growth of the Internet and social media has increasingly blurred the boundaries of privacy, putting out in public domain the most intricate details of human lives.(ANI Photo)
By, New Delhi

Expanding the ambit of the right to privacy and the right to be forgotten, the Supreme Court has asked its registry to work out a mechanism so that details of a couple embroiled in a bitter marital discord can be removed from search engines and the Internet.

On Monday, a bench of justices Sanjay Kishan Kaul and MM Sundresh found substance in the plea moved by the estranged wife that availability of the names, address and other personal information on the web violate her right to be forgotten, which has been acknowledged as a facet of the right to privacy by the top court in its 2017 landmark judgment.

The court order comes at a time when the growth of the Internet and social media has increasingly blurred the boundaries of privacy, putting out in public domain the most intricate details of human lives.

Digital footprints on the web are used to create algorithms to study behavioural patterns and automate human responses. At times like these, an individual can only have a small degree of control over personal information. Besides, the right to be forgotten entails a delicate balance between one’s right to privacy and the right to information in the larger public interest or for the State’s legitimate needs.

The current data protection regime in India, under the Information Technology Act 2000, does not accord legitimacy to the right to be forgotten. But the Data Protection Bill, which is being contemplated, seeks to introduce the concept. The draft law allows individuals the right to apply to the authority to restrict the continued disclosure or processing of their personal data by a data fiduciary if the data has served its purpose or is no longer necessary for the purpose and is sensitive enough to impact their activities.

Even as the legal principle is yet to receive statutory recognition, the right to be forgotten has become gravamen of several petitions across several courts of the country, demanding due attention and constitutional protection under the right to privacy.

The case before the top court

The couple from Karnataka got married in 2006. The woman, in her complaint before the police in 2016, claimed that the husband had contracted a sexually transmitted disease before their wedding, but concealed it from her. She also contracted the disease from her husband. They have a child, born in 2010. She charged the man with rape, alleging the consent given by her was on account of a fraud by the man, who hid her disease from her. Additionally, the husband was also charged with cheating, cruelty, assault, and committing acts likely to spread infection of disease dangerous to life.

The man approached the Karnataka high court after a magistrate took cognisance of all the charges levelled against him. The high court quashed the charge of rape on the ground that there is an immunity in law to husbands against this charge.

Aggrieved, the woman moved the Supreme Court to get the charge of rape restored but the court, in April this year, refused to interfere with the high court order. Around a month later, she moved an application before the court with a plea to mask all the details about her case.

She pointed out that it is impossible for her to protect her privacy and live with dignity when personal details about her marriage, history of contraction of a sexually transmitted disease, and other such information, readily pops up on the Internet. The plea added that availability of these details are causing immense mental trauma to her and to her child, adding keeping the husband’s name public also reveals her identity. The woman’s petition was supported by the husband, too.

Accepting her plea, the court directed its registry to remove all the pertinent details within three weeks. “We, thus, call upon the registry of the Supreme Court to examine the issue and to work out how the name of both the petitioner and respondent no.1 (woman and man) along with address details can be masked so that they do not appear visible for any search engine. The needful be done within three weeks from today by the registry,” stated the order.

The 2017 edifice

In August 2017, a nine-judge Constitution bench of the Supreme Court unanimously declared the right to privacy a fundamental right, being “intrinsic to life and liberty”. While the Union government countered that the right to privacy of an “elite few” is subservient to the right of the masses to lead a dignified life in a developing country, the Constitution bench remained emphatic that privacy is an inalienable right of individuals, embedded in freedom and liberty.

The 574-page judgment in the case consisted of six opinions. Three of these opinions, authored by justices Dhananjaya Y Chandrachud, Rohinton F Nariman and Sanjay Kishan Kaul, underscored the right of an individual to control personal information.

Zone of privacy is but an acknowledgement that each individual must be entitled to chart and pursue the course of development of their personality, held justice Chandrachud. “In that zone of privacy, an individual is not judged by others. Privacy enables each individual to take crucial decisions which find expression in the human personality... Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life,” added the judge.

Justice Nariman, in his opinion, recognised the concept of “informational privacy”, emphasising an individual may have control over the dissemination of material which is personal to them. The judge banked on a raft of judgments by the foreign courts to point out that it would be denigrating the central role that informational autonomy must play in any developed concept of the self if an individual does not retain some control on when and how and by whom the information about them is to be used.

The most elaborate opinion on an individual’s right to control personal information was penned down by justice Kaul, who acknowledged the new threats in an age of digital footprints while emphasising the significance of the right to be left alone and the right to be forgotten. According to the judge, an individual’s privacy needs to be protected both from the State and the non-State actors, which can gather and analyse data to shape behaviour or influence the decision-making process.

The right to control personal information is implicit in the right to privacy, said justice Kaul, adding there is no justification for making all truthful information available to the public. “It cannot be said that a more accurate judgment about people can be facilitated by knowing private details about their lives — people judge us badly, they judge us in haste, they judge out of context, they judge without hearing the whole story and they judge with hypocrisy. Privacy lets people protect themselves from these troublesome judgments,” the judge held.

For protecting individual autonomy and personal dignity, justice Kaul declared, every individual should have a right to be able to exercise control over his or her life and image as portrayed to the world.

Most importantly, justice Kaul ruled that the right of an individual to exercise control over personal data and to be able to control life would also encompass the right to control his or her existence on the Internet. “Humans forget, but the Internet does not forget and does not let humans forget... People are not static. They change and grow throughout their lives. They evolve. They make mistakes. But they are entitled to reinvent themselves and reform and correct their mistakes,” noted the judge.

Justice Kaul, thus, acknowledged the right to be forgotten as a facet of the right to privacy — this right, however, would be weighed against other fundamental rights and larger public interests. His judgment has since come handy for petitioners before several constitutional courts while seeking removal of information about them from the Internet in exercise of their right to be forgotten.

Court ordersafter 2017

In May 2019, the Delhi high court, while dealing with a civil suit seeking removal of certain news reports on “Me Too” allegations against the managing director of a media house, said the right to be forgotten and the right to be left alone are inherent aspects of the right to privacy, and restrained republication of these news reports.

Information in the public domain is like toothpaste, once it is out of the tube one cannot get it back in, the Orissa high court said in a November 2020 order when it dealt with a matter relating to videos uploaded of women by people they were in a relationship with in the past. “Allowing such objectionable photos and videos to remain on a social media platform, without the consent of a woman, is a direct affront on a woman’s modesty and, more importantly, her right to privacy,” it added.

The Delhi high court directed for a removal of a judgment from search results through a judgment in April 2021. The court recognised the right to be forgotten while directing Google to remove the order relating to a criminal case of a person who was finally acquitted. The man claimed that the judgment cast a long shadow on his employment opportunities.

On a petition by a woman actor, in August 2021, the Delhi high court ordered the takedown of some objectionable videos of her from YouTube and search engines. The high court said that the right to privacy includes the right to be forgotten and the right to be left alone as “inherent aspects” when a person is being exhibited against his or her will.

Through an affidavit in December 2021, the Union ministry of electronics and information technology (MeitY), told the Delhi high court the international legal concept of right to be forgotten is evolving in India too. “The right to privacy is a fundamental right and it also includes the right to be forgotten,” the ministry said while adding the Data Protection Bill also contains this provision. This affidavit was filed in response to a petition filed by two businessmen, seeking to remove certain articles, relating to a criminal case lodged against them, from various online platforms.

Senior advocate Geeta Luthra lauded Monday’s Supreme Court order, saying there must be a right to anonymity for an individual to move away from the past and build a new life. “In marital discord cases, both the husband and the wife should get a clean slate after their disputes are finally settled by courts. In some child custody cases where I have appeared, the courts have removed names of the parties so that the children cannot be identified,” she said. “After the law has completed its course, every individual must get a chance to start afresh.”

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