explained | Right to be forgotten: government position, court decisions and laws elsewhere

Last week, the Center told Delhi High Court that the ‘right to be forgotten’ is part of the basic right to privacy, but added that it has no significant role to play in this regard. . Petitions through the courts have called for the application of this “right” – a legal principle that is not yet supported by law in India.

What is the right to be forgotten?

It allows a person to request the deletion of private information from the Internet. The concept has found recognition in some jurisdictions abroad, in particular the European Union. Although this right is not recognized by law in India, courts have in recent months considered it to be an integral part of the right to privacy. At least eight petitions are pending before the Delhi High Court to request the removal of private information from the Internet, court records of previous convictions and proceedings, and reports of past events. So far, only a few have been able to get this relief from the courts.

Which countries have such laws?

The EU adopted in 2018 the General Data Protection Regulation (GDPR), article 17 of which provides for the right to erase certain categories of personal data – those which are no longer considered necessary, those for which the consent has been withdrawn or the processing of which has been objected to, the personal data processed unlawfully and the data for which there is a legal obligation to erase. However, the regulations limit the right to erasure in certain circumstances, including for reasons of public interest in the field of public health, for archival purposes “in the public interest, for research purposes. scientific or historical or for statistical purposes in accordance with “and for” the establishment, exercise or defense of legal rights.

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Russia enacted a law in 2015 that allows users to force a search engine to remove links to personal information for reasons of irrelevance, inaccuracy and violation of the law. The right to be forgotten is also recognized to some extent in Turkey and Siberia, while the Spanish and English courts have ruled on the matter.

What is the situation in India?

In a brief response to one of the petitions earlier this week, the Center told the Delhi High Court that the right to privacy was recognized as a fundamental right in the KS Puttaswamy (2017) judgment and that the “Right to be forgotten” is evolving in India. The government has stated that the draft law on the protection of personal data (a report of a joint parliamentary committee on which was tabled on December 16) contains provisions on the doctrine of the “right to be forgotten”.

How have the courts ruled on this?

In May 2019, Delhi High Court Judge Pratibha M Singh, in charge of a civil action demanding the removal of some reporting on MeToo’s allegations against the managing director of a media house, declared the “right to forgetting ”and“ the right to be left alone ”are inherent aspects of the right to privacy and the restricted republication of these reports.

In April 2021, the court ordered the removal of a judgment from the search results; the order is now disputed by Google. In January 2017, the High Court of Karnataka ordered its registry to ensure that no internet search engine reflects a woman’s name in an order issued in 2015. And in November 2020, the High Court of Orissa, adjudicating in a case relating to videos uploaded to Facebook by a rape accused, ruled that “allow such objectionable photos and videos to remain on a social media platform, without the consent of a woman, is a direct affront to a woman’s modesty and, more importantly, to her right to privacy ”. However, he did not issue an order to remove the videos.

What are the pending cases before the Delhi High Court dealing with?

Some of the applicants have requested the removal of orders in cases in which they have been acquitted or have already served their sentence. There is also an actor’s plea for the removal of videos, photos and articles related to a drunk driving incident. In August, the court cleared in August an actor’s plea for the removal of explicit videos from YouTube and other platforms.

Counsel for the applicants acknowledge that in the absence of legal support, the relief sought is likely to conflict with the public’s right to know and the operation of online platforms such as Google and Twitter.

“The problem is, these large national multinationals look different when operating in the European Union, but here they take the law for granted,” said lawyer Akshat Bajpai, who represents one applicants before the Delhi High Court.

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