Right to be forgotten: Your criminal record is erased; Your google record remains

The Internet Freedom Foundation is a digital rights group.

Google: Our goal is to support the widest possible access to information

Rina Chandran

Over a decade ago, Indian actor and reality TV star Ashutosh Kaushik was arrested for drunk driving. Today he is fighting for the right to put the accident behind him forever. He filed a petition in the Delhi High Court last year, seeking the removal of about 20 online news reports and videos of arrests and other "minor" incidents, highlighting a broader push in India to erase the legal record from the internet.

Akshat Bajpai, a lawyer representing Kaushik, said: “My client has been held hostage for minor accidents over a decade ago and has already paid for it. Why should he keep paying the price every time someone searches for his name on Google?

Kaushik's case was among dozens of similar petitions in India seeking to remove information from the Internet on the grounds that it was no longer necessary or relevant, making privacy rights inconsistent with freedom of expression and the public interest.

☚ Kaushik..why does he have to keep paying the price every time someone searches for his name on Google

“We must balance the right to be forgotten with the right to know,” Bajpayee told the Thomson Reuters Foundation. But what great public good is achieved by the appearance of a simple private accident every time someone searches for their name on the Internet?”

In the absence of a federal law, several district courts have recently ruled that the right to be forgotten or left alone is inherent to the right to privacy, and was recognized by the Supreme Court of India as a fundamental right in 2017.

The issue has become hot around the world with the explosive growth of social media and other online platforms, but few countries have legislation around it.

The right to be forgotten came to be recognized in Europe in 2014, and is part of the European Union's General Data Protection Regulation. The Supreme Court there ruled in 2019 that search engines do not have to apply the law anywhere else.

Government officials in India said a long-awaited data protection bill addresses the right to be forgotten. A Google spokesperson, named in Kaushik's petition, said the engine had systems in place that enable users to report content that violates their policies, including "the removal of content that is illegal under applicable local laws." "Our goal has always been to support the widest possible access to information," the spokesperson added.

Since the 2014 EU decision, Google has received more than 1.2 million requests to remove more than 4.8 million links, including from politicians, celebrities and the general public. A search engine must comply if links are “inadequate, irrelevant, or no longer relevant,” taking into account factors of public interest. Google data showed that more than half of the reported page addresses have been deleted.

Elsewhere, Russia allows removals in some circumstances, while countries such as Spain, Argentina, and the United States have allowed removals in some cases.

In India, most of the petitions for the right to be forgotten come from people who have either been acquitted of crimes or have served their sentences. Some have found information posted online without their consent.

Petitioners say online records have damaged their reputations, jobs and even marriage prospects

Anandita Mishra, of the Internet Freedom Foundation, noted that the issue of addressing whether people can request that their information be removed from searches, without limiting freedom of expression and the legitimate public interest, relates to courts that are restricted by the lack of a data protection law.

The Internet Freedom Foundation is a digital rights group. She is a defendant in a case being heard by the Kerala High Court, where the petitioners want their names removed from the compound's website, search engines and online court records after being acquitted.

The petitioners say the online records have damaged their reputations, jobs and even their marriage prospects. But the foundation said that allowing the right to be forgotten in this case could undermine freedom of speech and expression and the right to receive information.

“Our position is that court records will remain public records until a data protection law is in place,” Anandita Mishra said. The right to privacy or the right to be forgotten does not apply when something is in the public record.”

The lack of data protection law in India requires people who want to claim the right to be forgotten in court, and have to fight a long and costly legal battle. And Bajpayee stressed that many are not able to do so. For the courts, he said, the balance between the petitioner's right to privacy and the people's right to know was a slippery slope.

For actor Kaushik, whose case is scheduled to be heard by the court at the next hearing on April 1, the case is straightforward. He said: “I was 26-27 years old when I was arrested for driving under the influence of alcohol. I'm 42 now, and I'm still being punished for it," he said, adding that online reports upset his family and hurt his career and marriage choices.

He continued, “I am a public figure. But I also have the right to privacy, the right to be left alone.”