The Right to be Forgotten as a subset of Informational Privacy and its enforcement against private entities

The Right to be Forgotten as a subset of Informational Privacy and its enforcement against private entities

[This piece has been authored by Gaurav Pratap, a student at the Dr Ram Manohar Lohiya National Law University, Lucknow]

The IT Rules for protection of Sensitive Personal Data (SPDI Rules) lays down the broad principled framework for privacy legislation, while the judicial recognition of the right to privacy and its enforcement against private entities was majorly seen post the landmark judgement of KS Puttaswamy v Union of India.

In this article, the author analyses case laws where informational privacy has been given enforcement by the judiciary against private interference. The article would first discuss whether the right to privacy, at the present stage, is enforceable against private parties. Secondly, the author analyses the Right to be Forgotten (“RTBF”) which is a subset of informational privacy with respect to the pronouncements given by various High Courts regarding the enforcement of RTBF. Lastly, the author concludes with some suggestive remarks regarding the enforcement of informational privacy against private parties.

The Supreme Court in the case of KS Puttaswamy v Union of India has recognized Informational Privacy as the right of an individual to exercise control over his personal data and to be able to control his/her existence on the internet. Following this judgement, the first court to implement this right was the Delhi High Court in Zulfiqar v. Quintillion in which Quin had published an article alleging the petitioner of sexual harassment. The articles were published by three anonymous users who never came forward. The petitioner claimed the erasure of those articles and any republication thereof. The court conceded and said that the right to be forgotten and to be left alone are inherent aspects of the right to privacy and directed private platforms not to publish or republish the article.

The judicial enforcement of the right to privacy against private parties may be inferred from the division bench judgement of Delhi HC in the case of WhatsApp v CCI pronounced on 25th Aug 2022. In this appeal by WhatsApp, the question before the court to decide was whether the “Take it or Leave it” Privacy Policy amounts to unfair terms as per Competition Act. In the case, CCI refers to the letter dated Jan 2021, issued by MEITY to state that the ministry has warned WhatsApp as to how the 2021 “take it or leave it” Privacy Policy is violative of the right to privacy enshrined under the Constitution of India. The court held that the reliance of WhatsApp on CCI’s 2016 Order in Vinod Kumar Gupta is not valid as the 2016 Privacy Policy provided its user with an “opt-out” of data sharing. However, the 2021 Privacy Policy places its user in a “take it or leave it situation” which amounts to a virtually forced consent of the user to share data by giving a mirage of choice.

The Right to be Forgotten has been laid by the European Court of Justice seminally in the case of Google Spain SL v. Agencia Espanola de Protection de Datos (AEPD). In this case, an individual claimed the erasure of information concerning the debt he owed in past which was removed from search engines on grounds that the same information became irrelevant and inadequate. The court held that, in order to guarantee the rights of privacy and the protection of personal data, operators of search engines can be required to remove personal information published by third-party websites.

The RTBF has been unequivocally recognised as a subset of informational privacy by a separate opinion in the case of KS Puttaswamy v Union of India. This would imply that if an individual wishes to remove his data from the public sphere, he should not be denied so, as long as the information he wishes to be removed served no public interest, was ‘incorrect’ or was not necessary or relevant.

In the case of Karthick Theodore, Madras HC held that once a record becomes public, the right to privacy can no longer be claimed. The court relied upon Justice Kaul’s concurring opinion where he said that the RTBF cannot be exercised where there exists public interest attached to such information. As per Justice Venkatesh in this case, it is in the public interest to administer justice in public.  In my opinion, this is a bad reading of the Puttaswamy Judgement. It cannot be interpreted that once a record becomes public, RTBF does not subsist. As per Justice Kaul in Puttaswamy’s judgement, even in cases where individuals volunteer information, the state is bound to take meaningful consent at every stage of its usage.

In the matter pending before the Kerala HC in the matter of Virginia Shylu v. Union of India concerning RTBF, the petitioner Indian Kanoon has argued that when one individual exercises his RTBF, it is exercised at cost of another individual’s right to know. When these two individuals enter into a relationship like employer-employee, husband-wife etc., it is in the public interest that the other individual makes an informed choice. We argue that when two fundamental rights operate in conflict, then the golden rule of interpretation is to give a most liberal and harmonious interpretation.  As when the name of a person is searched on google, mostly news article tops the search results and not the authentic judgement. These news articles might not be an accurate depiction of a person’s acquittal which will affect his right to reputation.

After such a plethora of cases decided by High Courts revolving around masking or not to mask the name of the acquitted accused, the Supreme Court in X v. Union of India when faced with the request of the plaintiff, who claimed display of her name in the public domain in case of outraging the modesty of women as well as the display of the respondent’s name who was acquitted in outraging modesty case is causing her mental trauma and social stigma. She requested the court to mask both names in the exercise of her right to be forgotten. The Supreme Court considering the plaintiff’s exercise of the RTBF, in its interim order, directed its registry to work out how the petitioner’s name and acquitted accused name to be masked. Here it can be concluded that Supreme Court has given enforcement of RTBF and the name of the acquitted accused may be masked by claiming RTBF.

Conclusion and Suggestion

To balance the right to know and the right to be forgotten, it is suggested to selectively restrict RTBF for convicted criminals only till the time they are serving prison time and some reasonable grace period after that. As and when they can prove their good behaviours post-release, they should be able to request such right from the court to live a dignified life after that. The judiciary should assume the role of interim enforcement post when a right is being declared till the right is being given enforcement via a legislative framework. In recent judgements for instance when Madras HC stated that till the PDP Bill becomes an Act, the RTBF cannot be enforced, it is an erroneous interpretation as it is the constitution that guarantees a fundamental right and the enforcement is not dependent upon whether or not parliament has laid down legislation.

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