ASHUTOSH KAUSHIK AND THE SIGNIFICANCE OF HIS PETITION
Winner of MTV Roadies 5.0 in 2007, followed by Bigg Boss Season 2 win in 2008, Ashutosh Kaushik is known for enacting in many movies and shows as an actor, participant, and host. Ashutosh Kaushik recently filed a petition in Delhi Court where he claims that he has suffered severe reputation harm due to 2 acts he was involved with in the past. One of them was a drinking driving case in 2009, where he was riding a bicycle under the influence of alcohol with no helmet or driving license. He was also involved in a squabble with Mumbai Traffic Police. He was later, sentenced to jail for one day imprisonment with a fine of Rs.3,100 and 2 years suspension of Driving License. The second incident was a brawl in a Mumbai restaurant in 2013. Videos of both the incident were widely circulated over the internet and can be easily found on the platforms. According to Ashutosh Kaushik, these videos have raptured his professional as well as private life in myriad ways. He eventually stated that he lost a marriage proposal because of the videos,” I would get marriage proposals and then the girls’ families would find the videos and have second thoughts about me. They would look me up online.” Now, Ashutosh has decided to take a legal route and is demanding to de-list these videos from all the social media sites on the principle of the Right to be forgotten. Other than videos, he has also requested the Hon’ble Court in his petition to remove pictures as well as articles related to the aforementioned cases. The case was heard by the single judge bench of Justice Rekha Palli on 29th July 2021. The next hearing is scheduled for 20th August 2021.
RIGHT TO BE FORGOTTEN IN OTHER PARTS OF WORLD
Right to forgotten can be defined as “the right to have publicly available personal information removed from the internet, search, databases, websites or any other public platforms, once the personal information in question is no longer necessary, or relevant.” Right to forgotten is a statutory right in the European Union under the General Data Protection Regulation (GDPR) and has been upheld by several courts in Europe and United Kingdom. Right to be forgotten in context to GDPR is a wider and stricter form of erasing the data of a user. It is enshrined in Article 17 of GDPR, which states that any data subjects can be, according to the controller, be erased including personal data without undue delay. In 2014, Spain recognized the importance of the Right to be forgotten only when a matter was referred to the Court of justice of the European Union (UJEC). This matter was the case of ”Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos, Mario Costeja González”. In this instance, a man named Mario Costeja González claimed that Google showcased search results of an auction sale notice of his foreclosed property whenever he searches his name. González stated that the fact Google continued to present them in search results linked to him, was nothing but a violation of his privacy, even though the problem had been handled. According to Google, several countries are requesting for removal of personal data, significant events, and articles that lead to bad reputation of the country, parties, or social groups. The figures also reveal that around half of the requests are coming from 3 countries; France, Germany and United Kingdom. Around 17,500 requests are made under French law, 16,500 requests made under German Law, and 12,000 requests are made under UK law. Google also mentions few more countries that have asked to remove/block the content on their websites and other social media platform. It includes Dutch, Italian, and Spanish laws where the Right to be Forgotten has been recognized. This gives a fair share of idea that blocking specific content as well as completely erasing the personal data of a user is possible.
PERSONAL DATA PROTECTION BILL 2018: STILL HANGING
The Right to Be Forgotten is part of an individual’s right to privacy, which is controlled by the Personal Data Protection Bill, which Parliament has yet to enact. In a historic decision in 2017, the Supreme Court recognized the right to privacy to be a fundamental right. At the time, the court stated that “the right to privacy is safeguarded as an inherent component of the right to life and personal liberty under Article 21 and as a part of the freedoms granted by Part III of the Constitution.” The Personal Data Protection Bill was tabled in Lok Sabha on December 11, 2019, to establish laws for the protection of people’s personal data. The “Right to be Forgotten” is included in Clause 20 of Chapter V of the draft proposal titled “Rights of Data Principal.”It specifies that the data principal, the person to whom the data is connected, should have the right to restrict or prevent a data fiduciary from continuing to disclose his personal data. In general, users can de-link, limit, erase, or rectify the disclosure of their personal information held by data fiduciaries under the Right to be Forgotten. Any person, including the State, a corporation, any legal organization, or any individual, who chooses the purpose and means of processing personal data alone or in collaboration with others is known as Data fiduciary. Nonetheless, the sensitivity of personal data and information cannot be decided unilaterally by the individual in question but will be monitored by the Data Protection Authority (DPA). This implies that, while the proposed law includes provisions for a data principal to request that his or her data be deleted, his or her rights are subject to approval by the Adjudicating Officer who works for the DPA. This officer will need to evaluate the sensitivity of the personal data, the size of disclosure, the degree of accessibility requested to be limited, the role of the data principal in public life, and the type of the disclosure, among other variables, while reviewing the data principal’s request. The same phenomenon is followed in GDPR. The GDPR envisions the data subject contacting the controller to request the deletion of personal data. Only if the data controller refuses to comply with such a request may the data subject seek remedy from a supervisory body. According to Article 58(2) of the GDPR, a supervisory authority shall have the corrective ability to order the correction or deletion of personal data or the limitation of processing following Article 17 of the GDPR.
AFTER-EFFECTS OF RIGHT TO BE FORGOTTEN
Once the New DP Act takes effect, an individual whose personal data appears in internet searches will be able to apply to an Adjudicating Officer for an order directing one or more search engines to remove such personal data from the public domain, provided the conditions stipulated in section 27 of the New DP Act are met, i.e., it can be demonstrated that continuing disclosure of such personal data is detrimental to the public interest. Furthermore, the balance of interests between such removal and any other citizen’s right to free speech and expression and access to information must be tipped in favor of the individual whose personal data is being deleted. However, as previously stated, such individuals will not be able to request that such personal data be erased, and such personal data may stay imprinted on servers and other storage places. Section 27 of the New DP Act provides for the right to be forgotten even if the data fiduciary that stores or processes the personal data is a governmental entity. A public authority in this sense may be a university, a government-owned bank, or a hospital. However, there is an exception of Journalistic purpose. Journalistic purpose can be defined as “ any activity intended towards the dissemination through print, electronic or any other media of factual reports, analysis, opinions, views or documentaries regarding (i) news, recent or current events; or (ii) any other information which the data fiduciary believes the public, or any significantly discernible class of the public, to have an interest in.” Section 47 of the New DP Act exempts the processing of personal data essential for or relevant to a journalistic purpose from various provisions of the New DP Act, including, but not limited to, sections 10 and 27. As a result, the right to be forgotten and the regulation limiting data storage will not apply if the personal data is retained by a media organization that can demonstrate that the processing of personal data is necessary for a journalistic purpose.
CONCLUSION
A person’s privacy rights in public differ from those of the common citizen. It is assumed that when someone enters public life, they freely allow some level of interference into their private lives. To triumph against a person’s Right to be Forgotten, there must also be a “public interest” in preserving the material. The answers to these issues are unavoidably complicated, necessitating a thorough examination by the Court. This is because Kaushik is no longer a star, and any attention his life formerly received has diminished, is utterly wrong. It has affected him thoroughly and still is. It proves that the passing of the Personal Data Protection bill is nothing but an important task that needs to be finalized immediately. Ashutosh’s hearing and Discussion of the Personal Data Protection bill will eventually lead to more awareness to the people of India, and India can be the epitome of developed countries when it unfurls another right needed in the world, the Right to be Forgotten.