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Does EU’s Right to be Forgotten put barrier on the Net?

Indians who complain they don’t have the “right to be forgotten” in the cyber world like the Europeans, need not worry. According to experts, Section 79 of the Indian Information Technology Act empowers Indians to seek removal of web content about themselves that they find objectionable.

In fact, Indians have an upper hand over their European counterparts as this provision has been in force much longer than the Right to be Forgotten mandated by the European Union (EU) a month ago.

The much-publicised diktat from the EU has become so popular that the world’s largest search engine Google is reported to have already received 41,000 take-down requests. Europeans objecting to web content about them could ask search engines to prevent links from cropping up, kicking up a global row over the right to privacy and right to information in the virtual world.

Rahul Jain, principal consultant at Data Security Council of India (DSCI), says although it is a matter of interpretation, the provision under the Section 79 of the Indian Information Technology Act, which defines the do’s and don’ts for intermediaries can be correlated to the Right to be Forgotten. The provision asks intermediaries which can include a website as well as a search engine to carry out proper due diligence while running content on its infrastructure. It also allows users a window to ask service providers to take down content on the basis on invasion of privacy.

“In my opinion, the only difference between the EU’s mandate and the India’s Section 79 is that the former lays down explicit conditions under which the user can ask content not to be shown during searches while the Indian law is a little vague on the same,” says Jain.

Even though no exact numbers are available, officials of leading Internet companies confide that they have received hundreds of take-down requests under Section 79 of the Indian IT Act. “In fact, government departments including police agencies, send orders for removing content or requests for information on users under this provision instead of following the official route for taking down content,” says an official with a leading Internet firm.

Privacy experts have been advocating against Section 79 as they argue it promotes online censorship. In case a service provider does not comply with a request to take down content, the matter goes to judicial authorities. And often to prevent legal hassles, many service providers take down content without scrutinising the requests carefully. The EU’s mandate has also resulted in global debates around the rules governing Internet. A recent Wall Street Journal article has warned people to “brace up for an Internet with borders” following the EU mandate.

According to Parminder Jeet Singh, executive director of IT for Change, an India-based NGO, one of the key takeaways from the discussion is that the Internet is no longer a space that can be left alone. With more and more people joining the world wide web, public policies vis-a-vis the Internet need to be looked at seriously. “Do I own the information about me? These kinds of judgments are opening such philosophical issues about the internet,” Singh points out.

Google estimates show that out of the 41,000 requests it has received so far, 31 per cent relate to frauds, 20 per cent to arrests for violent crime, 12 per cent to child pornography arrests, while two per cent involved celebrity scandals. According to a BBC report, soon after the ruling, among the requests Google received were one from an ex-politician seeking re-election, who wanted the links to an article about his behaviour in office removed; another from a man convicted of possessing child abuse images, who requested the links about his conviction to be wiped off; and yet another from a doctor seeking removal of negative reviews by patients.

The call to comply or reject such requests on the pretext of public good lies with the search engine. However, 30 per cent of the requests which do not fall under such categories could be genuine and can be justified through various personal reasons. This leads to another discussion about the feasibility of such an order.

According to DSCI’s Jain, search engines will have to apply public interest test to evaluate such requests, which will involve a big compliance effort as well as cost on the part of Google or other search engines. “Also, it will now be much easier for users to file requests, which will lead to a huge number of requests. Some of those could also be fake or frivolous,” he says, adding that it could be non-enforceable in many cases.

The EU regulation will not effectively solve the real problem as search engines will be only barred from showing the links to the disputed content; they don’t actually remove the content. People can continue to access the content by directly going on the page that hosts it. However, this is not the case with the Indian IT Act, where the content can be removed from host sites. There are fears that other countries, too, might come up with legislations on similar lines which raises serious questions about the freedom of speech and expression on the virtual world.

Who makes the distinction between right and wrong, asks Singh. Leaving the judgment call on the intermediary may be giving them too much power, which may be not good, he adds.

Perhaps a quasi-judicial body which is separate from the executive and could offer decisions in a short time should deal with such Internet-related issues. “It is because a private person can become a celebrity and a public person may become private after retirement; so who decides that?”

This is what happened in the case of Mario Costeja González, a Spanish lawyer who was forced to auction a property he owned in 1998 to settle outstanding tax demands. In 2009, he sought to remove a link to a 36-word property auction notice that was printed in a local newspaper and digitally archived, because online searches on his name led to links with the auction notice. González argued since he paid off the taxes, the online auction notice reflected badly on him. The European Court of Justice saw a point in González’s argument and hence the ‘Right to be Forgotten’ came into being.

However, as a side-effect to his quest for justice, links to that auction notice can’t now be removed since the case is key to a critical legal ruling and González is now a public figure.

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