'Right to be Forgotten' closer to becoming a law
By Amita Naik
It's just a matter of time before you could now, by law, demand a Social Media platform, like Facebook, Twitter or Instagram, even a Search Engine, like Google, to remove any or all data pertaining to you. This follows years of strategic campaigning and legal posturing by DraftCraft International through its media entity, The Draft, and legal entity, The Chamber Practice. The Joint Parliamentary Committee's report on Personal Data Protection Bill 2019 was tabled in both the houses of Parliament on 16 December 2021. It contains provisions related to the Right To Be Forgotten - a right fundamental to the Right to Privacy and the Right to Life as guaranteed by the Constitution of India.
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The concept of the Right to be Forgotten is relatively new in India where an individual could seek to remove or delete online posts which may contain an embarrassing picture, video or news articles mentioning them. The Ministry of Electronics and Information Technology (MeitY), in an affidavit, stated the international legal concept of ‘right to be forgotten’ is evolving in India. “The right to privacy is a fundamental right and it also includes the right to be forgotten,” the Ministry said, adding, “The Government of India, understanding the need to protect its citizens and their privacy, has brought out the Personal Data Protection Bill 2019.
This Bill contains provisions related to the doctrine of 'right to be forgotten'. The affidavit highlighted two judgments passed by the Orissa High Court and the Karnataka High Court where they have accepted the doctrine of the ‘right to be forgotten’ as an essential part of the ‘right to privacy’.
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A petition has been filed by two businessmen before a High Court seeking to remove certain articles, relating to a criminal case lodged against them, from various online platforms. Businessmen Jaideep Mirchandani, an NRI, and Siraj Amani, in a joint petition, said they were aggrieved by certain online articles related to their arrest in a 2002 case, from which they were acquitted in 2016. It read that even though the businessmen "had been honorably discharged by the competent courts, yet the alleged articles and wrong information available against petitioners continue to haunt them." The businessmen said they have the ‘right to be forgotten’ or the ‘right to delink’ in the context of the facts and circumstances of the case.
Meanwhile, the Ministry added that the Information Technology Act provides for blocking certain information for public access. It said the IT Act also allows removal of certain unlawful information from an intermediary platform. It said since the petitioners are seeking removal of court order related to information available online, the High Court could directly issue directions to the concerned parties. Earlier, the court had also issued a notice to search engine giant Google on the businessmen’s plea but declined to grant interim relief to them.
It may be recalled that Reality Show celebrity Ashutosh Kaushik too had recently filed a writ petition in Delhi High Court with an application for ‘The Right To Be Forgotten’ directing respondents namely, the Union of India, Press Council of India, Press Information Bureau, Electronic Media Monitoring Centre and Google to remove his videos, photos, articles from various online platforms as the same were “engendering a detrimental effect on his life and personal liberty.”
Saharanpur-born Ashutosh Kaushik, following his first win at the MTV Hero Honda Roadies Season 5 in 2007, went on to win Big Boss Season 2 in the very next year and then made a series of appearances in television shows even a few movies. It may be recalled that the performer was in the news in 2009 when he was held by the Mumbai traffic police for drunken driving. About ten days after Kaushik’s arrest, the Metropolitan Magistrate Court sentenced him to one-day imprisonment, imposed a fine of Rs 3,100 and suspended his driving licence for two years. Kaushik was then charged for drunken driving, not wearing a helmet, not carrying his driving licence and failing to obey the police officers on duty. A few years later, he was allegedly involved in a drunken brawl at a party.
His petition, twelve years later, says that he “had to suffer utmost psychological pain for his diminutive acts, which were erroneously committed a decade ago as the recorded videos, photos, articles of the same are available on various search engine s/ online platforms.” In the petition, Kaushik says “people should not be indefinitely reminded of their past mistakes. Even when information is lawfully in the public domain or originally shared by the individual with his or her consent, people have a right to make mistakes without being haunted by them indefinitely. This is already recognised by the law in relation to spent convictions; the same should be true in the digital environment.”
That the Right to Privacy has been included in the Personal Data Protection Bill 2019 vindicates the campaign initiated by DraftCraft International's #ThePrivacyMattersProject in conjunction with The Draft.
The campaign has been provided legal support by The Chamber Practice of Solicitor Gajanan Khergamker through its team of legal associates Adv. Priya Mukhopadhyay, Adv. Manu Shrivastava and Adv. Aditya Paul. DraftCraft International researchers working on #ThePrivacyMattersProject include Raquel Gonzalez, Vandana Rao, Pragati Mohan and Anthony Samuel.
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