Across nations, the battle for the right to be forgotten
From the US to France and the rest of Europe, and even in India, the right to be forgotten or the right to erasure has been part of jurisprudence for several years.
There is a saying in French, le droit à l’oubli or the right of oblivion. In French jurisprudence, this legal right entitles a convicted criminal, who has already served their time, to object to the publication of the facts of their conviction and incarceration. In the United States (US), the publication of an individual’s criminal history is protected by the First Amendment.
The right of oblivion, or to be forgotten, addresses an urgent issue in our 21st century digital era: Can we really escape our past on the internet when our photographs, tweets, statuses, and stories are forever a part of the online public domain? (Shutterstock)
The issue, however, has many facets. A case in point is the infamous German case where Wikipedia (successfully) resisted the efforts of two Germans, convicted of murdering a famous television actor, to remove their criminal history from the deceased actor’s Wikipedia page.
The right of oblivion, or to be forgotten, addresses an urgent issue in our 21st century digital era: Can we really escape our past on the internet when our photographs, tweets, statuses, and stories are forever a part of the online public domain? Recently, in a rather interesting development, the Supreme Court (SC) of India, ordered its registry to set up a mechanism to remove the personal details of litigants entangled in matrimonial litigation and matters involving serious charges such as offences committed on the modesty of women. In a similar context, in a matter pertaining to child custody — where the details and diary of the child were being perused in a custody dispute — the Delhi high court (HC) held that there should be a right of anonymity.
This is not the first time that the Indian courts have expressed an inclination towards adopting the right to be forgotten (RTBF) jurisprudence. RTBF found its Indian foundational bedrock in the famous 2017 Right to Privacy judgment (Justice KS Puttaswamy (Retd.) v Union of India). The legal literature laid down in the Puttaswamy judgment affirmed and espoused RTBF as one of the facets of privacy. However, a few Indian judgments deliberated on RTBF prior to the Puttaswamy ruling.
In the case of Dharmraj Bhanushankar Dave v State of Gujarat (2015), an individual had filed a petition before the Gujarat HC, praying for a permanent restraint on the public exhibition of the judgment and order in which he was involved. The individual argued that the decision delivered by the HC was a “non-reported” judgment, but it had still been published online and e-linked by Google on its search platform. Unfortunately for the individual, the HC rejected the petition on the grounds that first, there was no specific law on this point, and second, that the “reporting of judgments” can only be understood to mean publishing by law reports. Thus, an online website publication would not count as reporting.
In another case, Vasunathan v Registrar General (2017), the petitioner’s father filed a writ petition before the Karnataka HC praying that his minor daughter’s name be removed from existing judgments or orders. This judicial decision merits applause, since the court, in what appears to be one of the earliest decisions in Indian jurisprudence, recognised that the remedy sought by the father was similar to RTBF in foreign jurisdictions and allowed it. In this case, the court did not refer to any constitutional provisions while granting relief. The court’s order emphasised that an internet search must not reflect the woman’s name, due to the sensitivity involved in “highly-sensitive cases involving rape, affecting the modesty and reputation of the person concerned.”
Jurisprudence abroad is more robust. Member-States of the European Union (EU) have made several efforts to consolidate RTBF. The Data Protection Directive was an EU directive passed in 1995 to govern the exemption of personal data within the EU. It is a crucial part of EU privacy and human rights law. Subsequently, in April 2016, the General Data Protection Regulation (GDPR) was enacted.
According to GDPR Article 17, an individual has a right to request the erasure of personal data on a variety of grounds, including non-conformity with Article 6(1), which includes a case if the controller’s sincere interests are overshadowed by the data subject’s interests or fundamental rights and freedoms, which require the protection of personal data. Therefore, GDPR Article 17 has defined the situations in which EU citizens can exercise their right to be forgotten. The article gives citizens the right to have their personal data erased under certain conditions, but can be denied — in tandem with public interest.
In the landmark case of Google Spain SL v Agencia Española de Protección de Datos, a member of the public requested the erasure of the information, and the European Court of Justice ordered Google to delete all such information. This decision, popularly referred to as the “right to be forgotten” judgment, played a key role in strengthening data protection laws in the EU.
The US has an evolving privacy jurisprudence which protects the privacy and dignity of individuals. In fact, the state of New York drafted a Right to be Forgotten Bill, written along with foundational jurisprudence laid down by the European Court of Justice’s decision.
Among the many notable US decisions related to RTBF, the facts and decision in Sidis v FR Publishing Corp are particularly interesting. In this case, Willian James Sidis, the plaintiff, was a former child prodigy who wished to spend his adult life in absolute privacy. However, an article in The New Yorker disrupted his peace by publishing a story about him. In this case, the court declared that the option to control one’s own life has certain limits, and that notable public figures cannot overlook their popularity even when they wish to. In such matters, the public may have a right to know about the lives of public leaders in different spheres, albeit subject to their right of informational privacy not being encroached upon.
In this context, the question of the need for anonymity in view of the spate of allegations, accusations, and trials — both civil and criminal —against public men and women, who are either victims or accused, is a moot issue, although section 228A of the Code of Criminal Procedure gives anonymity to the victims of sexual abuse.
RTBF, when a person has completed his term of conviction or when a trial is over or even when civil proceedings are long buried, needs to be urgently addressed so that such people and their families can continue their lives on a clean slate, unencumbered by memories which may haunt them and their families for generations.
Geeta Luthra is a senior advocate, Supreme Court of India. Anirban Chanda, advocate, assisted in the writing of this article
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