The Right to Be Forgotten

RECENTLY, THE DELHI HIGH COURT BEGAN to hear a case that, in keeping with the pace of any process in India, was connected to something that happened in 1999. That was when Dr Ishwar Gilada, a specialist in HIV treatment, was accused of illegally getting medicines for the disease from abroad, which also allegedly led to the death of one person. He got bail within weeks and was eventually exonerated by a trial court. And there the matter would have rested except that as the new millennium progressed, the memory of the case was etched online and the doctor’s name became associated with a crime that, in his reckoning, he had been deemed innocent of. Specifically, references to it in four publications—The British Medical Journal, The Lancet, NCBI and Indian Paediatrics—were coming up in Google searches. The doctor’s attempts to get these publications to remove the articles had not succeeded. He had therefore turned to the judiciary, and the high court has now asked Google for a response on whether deindexing of search results related to the case is possible. On May 18, the next hear­ing, it will also club similar connected matters. What is on test here—the right to be forgotten online—is something that only Europe seems to have got a handle on, but which is an issue everywhere given the ubiquity of the online world.

When the internet began, by virtue of what was available, it had more or less only content of public interest. Then it seeped deep into individual lives and the digital footprints of every­one started leaving online traces. Once social media matured, these were not faint impressions but a substantial record, and it didn’t matter if you were a salesman or a minister. Anything tangentially related to you was recorded and could be thrown up on call. When search engines were invented, the idea that people wouldn’t want to be part of its findings wasn’t really a concern. Now, the dynamics have changed but there was noth­ing to be done. The technology companies didn’t see it as their job to humour the sensitivities or privacy concerns of individu­als. Their model was based on making results as comprehensive as possible. Without a law, there was no recourse for anyone to force their hands.

In 2014, a Spaniard put a spanner there. Mario Costeja González had a repayment issue in his history. In 1998, a notice had been issued in a newspaper for attaching his house because of unpaid debts. By 2010, it was still being thrown up in Google search results via a link to an article, and from González’s point of view, it was entirely unnecessary because that part of his life had long been sorted out. Spain has a data protection agency which he approached to get both the newspaper and Google to remove this particular history. They held that he had no claim against the former, but permitted it against Google which then went into appeal to the judiciary there. It was referred to the Court of Justice of the European Union, which held for González. According to an article in the US-based Electronic Privacy Information Center on this issue: “In Google v. Spain, the European Court of Justice ruled that the European citizens have a right to request that commercial search firms, such as Google, that gather personal information for profit should remove links to private information when asked, provided the information is no longer relevant. The Court did not say newspapers should remove articles. The Court found that the fundamental right to privacy is greater than the economic interest of the commercial firm and, in some circumstances, the public interest in access to Information.”

Since then, in Europe at least, the default position is that peo­ple have a right to be forgotten if certain ground rules are met, like the information being irrelevant, inadequate, or even more than what is necessary to be shown. There is also a mechanism spelt out on how to go about doing it. The rest of the world, how­ever, does not have it so easy, even though this is something that most people desire. The US, for instance, has no explicit right to be forgotten even though a survey by Pew Research Center had found that 74 per cent of Americans wanted it.

In India, too, it is only through the judiciary that this right can be invoked. A famous case is that of Ashutosh Kaushik, a re­ality television star. Coming from a small town in Uttar Pradesh, he had suddenly shot to fame after winning Roadies, an MTV show that was enormously popular among the youth. This was in 2007 and the very next year, he won the first prize in Bigg Boss, which had an even bigger audience. A year later, in 2009, he was stopped by the police while riding his motorcycle because he wasn’t wearing a helmet. They found out that he had also consumed alcohol. He was fined, his licence suspended and he had to spend a day in jail. Kaushik’s career never took off in the movies or television but because he was a celebrity back then, newspapers reported on this incident. And he found this his­tory chasing him online. In 2021, he, too, had filed a case in the Delhi High Court asking for his reputation to be protected. His petition stated: “However, despite attaining outstanding success in the silver screen industry, under deep agony the Petitioner 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 engines/online platforms.” It says that the information is irrelevant to the present and only serves to violate his dignity.

Online makes everything a constant headline whenever a cursory search is done. Every act done at any age becomes a permanent marker of character. This has implications. Someone who made a mistake decades ago will not find a job, a marriage prospect, a house to rent, or anything that is necessary for a reasonable existence in society

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In an earlier age, articles published in newspapers or broadcast television had a lot of traction but their effect was limited in time. If you wanted something from 10 years back, effort was needed to retrieve it from the archives. Online makes everything a constant headline whenever a cursory search is done. Every act done at any age becomes a permanent marker of character. This has implications. Someone who made a mistake decades ago will not find a job, a marriage prospect, a house to rent, or anything that is necessary for a reasonable existence in society.

AMONG THE NUMEROUS arguments for the right to be forgotten, a primary one is that having material online that people do not want shown is a violation of their pri­vacy. Only the individual should get to decide it unless there is clear public interest. A politician who has been convicted of corruption shouldn’t really have a say in hiding it, but what about a woman who has been the victim of revenge porn? This was something the Orissa High Court reflected upon in 2020 in the case of a woman who had been raped, her video shot, and then uploaded on Facebook after opening a fake account in her name. In his order, the judge wrote: “Though the statute pre­scribes penal action for the accused for such crimes, the rights of the victim, especially her right to privacy which is intricately linked to her right to get deleted in so far as those objectionable photos have been left unresolved. There is a widespread and seemingly consen­sual convergence towards adoption and enshrinement of the right to get deleted or forgotten but hardly any effort has been undertaken in India till recently, towards adoption of such a right…”

There are also counterargu­ments against the right. One is that it is hard to do. That information is so entrenched that the ability to re­move its traces is limited. Then there is the slippery slope. If the door is left open for such a right, it will be used to remove information that is also in public interest, like, say, convicted criminals. Then there is the possibility of the right being used as a censorship tool by people in power by forcing the removal of traces of their own corruption and crimes.

These are still issues that can be worked around if the funda­mental principle of owning one’s own history is accepted. The absence of it removes the possibility of redemption for one’s past. Forgetting would not be necessary in a world that freely gave second chances but in recent times, the trend is swinging in the other direction. Cancel culture is not merely rising but expanding as missteps once highlighted online get summarily punished. If people don’t have a right to be redeemed, then to be forgotten just seems a more human thing to do.

About The Author

Madhavankutty Pillai

Madhavankutty Pillai has no specialisations whatsoever. He is among the last of the generalists. And also Open chief of bureau, Mumbai  

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