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Saturday, September 25, 2021

Right to be Forgotten: Privacy vs Freedom

In Ashutosh Kaushik's appeal to Delhi High Court, there is an opportunity to work out conflict between fundamental rights.

August 4, 2021 8:22:55 pm
Data protectionIn recent years, without a data protection law to codify RTBF as is the case in the EU, India has seen some inconsistent and peculiar adjudication of the right by various high courts.

Written by Dhananjay Dhonchak

Recently, the petition filed before the Delhi High Court by Ashutosh Kaushik wherein he claims that he is suffering reputational harm due to old news stories on incidents from his past such as a drunk driving case in 2009 and a brawl in 2013 has been in the news. The legal basis on which he is demanding that these videos and stories be de-listed or taken down is the right to be forgotten (RTBF).

This has presented a unique opportunity for the court to engage in a detailed analysis of RTBF and evolve a mechanism for balancing the conflicting rights of privacy and freedom of expression.

Individuals in the European Union (EU) have the right to demand that search engines like Google delist certain types of personal information about them that is false, inaccurate, outdated, excessive, irrelevant, inadequate, or taken out of context after the Court of Justice of the European Union’s (CJEU) decision in the landmark case of Google Spain v Costeja.

As to the discussion of RTBF in the Indian context, Justice Kishan Kaul’s opinion in Puttaswamy v. Union of India noted that the right to be forgotten was a part of the broader right of privacy.

However, this has not been enough. In recent years, without a data protection law to codify RTBF as is the case in the EU, India has seen some inconsistent and peculiar adjudication of the right by various high courts. Courts in India have repeatedly either accepted or rejected the application of RTBF while completely ignoring the wider constitutional questions associated with it.

The existence of RTBF in a given situation depends on its balancing with other conflicting rights such as the right to free expression or other publication rights. For example, person A may want to de-link information about his criminal records and make it difficult for people to access certain journalistic reports when they google him. This brings the person’s right to be left alone, derived from Article 21, directly in conflict with the rights of the media to report on issues, flowing from Article 19. The court will have to carry out a detailed examination of the position of person A in society, the nature of the information sought to be taken down or de-linked, the public’s interest in retaining that information, etc. Accordingly, the remedy may also differ: The court may ask the information to be expunged from the source or may order only de-linking the posts such that they don’t appear on the search engine and continue to be available on the original source’s page. Whichever way the court decides, at least two fundamental rights — the right to privacy and the right to free speech and expression — will be impacted.

In the absence of specific legislation, the RTBF emerges from the right to privacy under Article 21 and partly from the right to dignity under Article 14. This makes its application even more interesting and unclear at the same time. This is because the RTBF will normally be claimed against a private party (a media or news website).

This raises the question of whether fundamental rights which have traditionally only been enforceable vertically — against the State – can be enforced horizontally, that is, against private citizens? Gautam Bhatia notes that only Article 15(2), Article 17 and Article 23 have an element of direct horizontality — where a private act of a private party is challenged based on its violation of the Constitution. Courts are currently relegating themselves to merely enforcing constitutional provisions against private parties indirectly by compelling the state to perform certain duties that prevent or prohibit a private act. However, a coherent jurisprudence on the RTBF by Indian Courts would entail the enforcement of Article 21 directly against private parties.

Curiously, our constitutional courts, which are infamous for overzealously writing hundreds of pages while deciding cases, have restricted themselves to one or two-page orders when it comes to the RTBF. This is not to suggest that the RTBF has been rejected by Indian courts. For example, in 2018, the Karnataka High Court accepted a petition for the removal of a woman’s name from the cause title of a criminal and civil matter. The Court, without engaging in any sort of analysis, accepted the contention that her name in the cause title was damaging to her reputation in society and mentioned that there was a similar “trend” to accept such claims in Western countries. At the time of writing this article, there is only one instance from the Odisha High Court where the Court conducted an assessment of the RTBF by citing European and Indian cases. However, since the Court was only hearing a bail petition, it did not address any wider constitutional questions or explore any balancing mechanism that could then be utilised as a valid reference for other high courts.

Referring to the claim of former Roadies and Bigg Boss winner Ashutosh Kaushik, it must be noted that the privacy rights of a person in public life are different than that of an average citizen. It is presumed that when someone enters public life, they voluntarily allow intrusion into their private life to some extent. However, there must also be a “public interest” in retaining the information to prevail over a person’s RTBF. The answers to these questions are necessarily complex and demand a detailed assessment by the Court. This is because Kaushik is no longer a celebrity and any attention that his life garnered in the past has dwindled. Does this mean his privacy rights will be on par with that of an average citizen? It will be the “methodology” that the Court adopts in reaching its decision rather than the decision itself that will generate interest from scholars and practitioners.

The writer is a student research fellow at We, the Humans (NGO) and is a law student at National Law University, Hyderabad (NALSAR)

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