TV personality and MTV Roadies winner Ashutosh Kaushik has sought the erasure of his personal data that exists online, saying that it is a source of agony for him to have certain episodes from his life continually come up in search results so as to prevent him from moving on and find closure over those. The ‘right to be forgotten’ has been recognised as a necessary element of personal data protection laws as governments look to hand more control to people over information related to them. Here’s what you need to know.
What Is Ashutosh Kaushik’s Demand?
The winner of the MTV Hero Honda Roadies 5.0 in 2007 and the Big Boss second season in 2008 has moved Delhi High Court with the plea that orders be issued to Google and relevant entities to facilitate the removal of posts, videos, articles and any information related to incidents that he was involved him as their presence on the internet is a source of “utmost psychological pain” to him.
Reports said that the reference was specifically to episodes involving a 2009 drunken driving case and an altercation at a Mumbai cafe in 2013. In his plea, Ashutosh is said to have told the court that “the right to be forgotten reflects the claim of an individual to have certain data deleted so that third persons can no longer trace them. The right enables a person to silence the past events of his life that are no longer occurring”.
He urged that “the right to be forgotten entitles individuals to have information, videos or photographs about themselves deleted from certain internet records so that search engines cannot find them”.
While the lawyer representing Google told the court that India does not have a law yet on right to be forgotten — the country’s Personal Data Protection (PDP) Bill was tabled in Parliament in 2019 and is being examined by a Joint Parliamentary Committee (JPC) — the counsel for Ashutosh said that while there is no express right in that regard, the Supreme Court has held that the right to privacy is an essential part of the ‘Right to Life’ enshrined in Article 21 of the Constitution.
Does India Have A Law On Right To Be Forgotten?
The PDP Bill, which lays down regulations for the protection of personal data of individuals, also covers the right to be forgotten. However, the Bill is yet to become law and the JPC that is studying it has reportedly sought time till the Winter Session of Parliament later this year to present its report on the same.
In the meantime, the Information Technology Rules, 2011 — which is the current regime governing digital data — does not have any provisions relating to the right to be forgotten.
The PDP Bill states that “the right to privacy is a fundamental right and it is necessary to protect
personal data as an essential facet of informational privacy” and defines ‘personal data’ as “data about or relating to a natural person who is directly or indirectly identifiable”.
Despite the absence thus of regulations on the right to be forgotten, the Delhi High Court in an order earlier this year reportedly directed Google and an Indian website covering legal matters to take down information related to an American citizen of Indian origin. This order was cited by Ashutosh’s counsel in seeking directions on behalf of his client.
What Do The Provisions In PDP Bill Say On Right To Be Forgotten?
Section 20 of the PDP Bill says that a ‘data principal’ — or the person who generates the data or to whom the information pertains — can rightfully ask a ‘data fiduciary’, which is any entity that stores or processes such data, to “restrict or prevent the continuing disclosure of his personal data” in specific circumstances.
To seek erasure of data, it is necesary to establish that it “has served the purpose for which it was collected or is no longer necessary for the purpose; was made with the consent of the data principal… and such consent has since been withdrawn; was made contrary to the provisions of the PDP Bill (when passed) or any other law”.
However, there is an elaborate mechanism envisaged under the PDP Bill for triggering the right to be forgotten. The Bill says that the right can be enforced only on an order of an adjudicating officer following an application filed by the data principal. However, the decision on whether the right to be forgotten can be granted with respect to any data will depend on whether it contravenes “the right to freedom of speech and expression and the right to
information of any other citizen”.
What Laws Do Other Countries Have?
The European Union (EU)’s General Data Protection Regulation (GDPR) allows individuals to have their personal data deleted, but the authorities note that “organisations don’t always have to do it”. The GDPR provisions read like a template for the Indian PDP Bill and state that individuals can seek that their data be erased when “they no longer consent to processing, when there are significant errors within the data, or if they believe information is being stored unnecessarily”.
However, EU notes that the right to be forgotten is “not an absolute right” as that would mean it would become “nothing more than a rewriting of history”. Thus, in cases where the data is being used to exercise the right of freedom of expression and information or for complying with a legal ruling or obligation, a request for erasure may not be entertained. Also, where public interest is involved or when an organisation is using data while exercising its official authority, it can refuse to erase any data that it deems is necessary for its purposes.
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