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India: Will judiciary recognize the emerging “right to be forgotten

March 13, 2017
VOL II
ISSUE No. 06
March 13, 2017

The “Right to be Forgotten”- An Indian Perspective

Right-to-be-Forgotten

The internet has a continual memory that stores everything which was ever uploaded on it. The advanced technology and new search algorithms generates information in seconds that was ever uploaded and such information can be shared by Whatsapp, Email, Facebook, etc. by just clicking on the share button. Wherefore, to protect one’s privacy a need has been felt that any information which is no longer relevant should be removed from the public domain. The Right to be Forgotten allows an individual to request for the removal of his/her personal information from an online database after a period of time or such information is no longer relevant. The issue of Right to be Forgotten revolves around the question that whether an individual should be granted a right to request for deletion of data generated from the list of results promoted by search engines, websites, social networks, blogs, etc.

EU Data Protection Law

The Right to be Forgotten is a remedy available under data protection law, enabling a data subject to obtain from the data controller the erasure of links to data which the data subject regards as prejudicial to him or her. It is a right which, in the European Union, derives from the 1995 Data Protection Directive. In the case of Google Spain and Google Inc. v. Agencia Española De Protección De Datos and Mario Costeja González the Court of Justice of the European Union on May 3, 2014 recognized the Right to be Forgotten and explained its scope. In 2010, a Spanish citizen Mario Costeja González lodged a complaint against a Spanish newspaper La Vanguardia Editions SL, Agencia Española De Protección De Datos and against Google Spain and Google Inc. His grievance was that an auction notice of his home which was repossessed later was still on Google’s search results, infringing his right to privacy. He argued that, as the proceedings concerning him had been fully resolved for a number of years, the links available on Google regarding this were now totally irrelevant. Mario Costeja González requested the newspaper to remove the information or change the pages so that his personal information no longer appeared. He also requested Google Spain to remove his personal data, so that it no longer appeared in the Google search results.

The Court held that an internet search engine operator is responsible for processing data which appears on the web pages published by third parties. For example if a search made on a person’s name, internet search engine operator will generate a list of results displaying links to web page which contains information on the person in question. If a person is aggrieved by such information then they may directly approach the operator and, where the operator does not grant his request, bring the matter before the competent authorities in order to obtain, under certain conditions, the removal of that link from the list of results.

Right to Privacy in India

The Constitution of India does not expressly recognize the Right to Privacy. However, this Right to Privacy has been culled by the Supreme Court from Article 21. For the first time in India the Supreme Court in the case of
Kharak Singh v. State of U.P.,[1] held that Right to Life includes personal liberty and thus, right to privacy.

In the case of R. Rajagopal v. State of T.N.,[2] the Supreme Court held that the right to privacy was implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It was a “right to be let alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. However, the Court held that the above rule was subject to an exception that a publication cannot be objected if such publication is based upon public records including Court records.

In India, the “Right to be Forgotten” has travelled on different paths. While the Kerala High Court and Karnataka High Court have ruled in favor of Right to be Forgotten, the Gujarat High Court has ruled against it.

Judgement of the Gujarat High Court in Dharamraj Bhanushankar Dave v. State of Gujarat & Ors[3]

The Petitioner sought remedy under Article 226 of the Constitution of India against the publication of a judgment by Indian Kanoon and same was shown by Google in its search results, which was a ‘non-reportable judgment’. The Petitioner claimed that such an act violated Article 21.

The Petitioner contended that Google and Indian Kanoon had no authority to publish a non-reportable judgment and it had adversely affected his personal and professional life. He also contended that because of such publication, the judgment was freely available on the internet and the same was against the classification made by the Court.

The Court observed that “The judgment in appeal is part of the proceedings and the said judgment is pronounced by this Court and therefore, merely publishing on the website would not amount to same being reported as the word “reportable” used for judgment is in relation to it being reported in law reporter.”

In the Court’s opinion, there was no legal basis to order such removal and the presence of the judgment on the Internet did not violate the petitioner’s rights under Article 21.

Judgement of the Karnataka High Court in Sri Vasunathan v The Registrar General[4]

The Petitioner was father who had moved a Writ Petition before the Court seeking orders to block his daughter’s name in an earlier order passed by the Court, as his daughter feared the
consequences of her name associated with this earlier matter and if a name –wise search was carried on by any person through any of the internet service provider such as Google and Yahoo, this order may reflect in the results of such a search. The Petitioners daughter was afraid that this would affect her relationship with her husband and her reputation and good-will in society.

The Court Observed that “This would be in line with the trend in western countries of the ‘right to be forgotten’ in sensitive cases involving women in general and highly sensitive cases
involving rape or affecting the modesty and reputation of the person concerned.”

The Court directed its registry that it should endeavour to ensure that any internet search made in the public domain ought not to reflect the petitioner’s daughter’s name in the case-title of the order or in the body of the order in the criminal petition.

Judgement of the Kerala High Court in the Civil Writ Petition No. 9478 of 2016

The Kerala High Court in its order dated February 23, 2017 has also ruled in favor of the Right to be Forgotten. In the present case, a writ petition was filed before the Kerala High Court by the petitioner for protection of their Right to Privacy under Article 21 of the Constitution. The petitioner was seeking directions from the Court to ensure that their identity would remain protected and the materials disclosing their identity on IndianKanoon, Yahoo and Google would be removed or hidden appropriately. Due to the seriousness of the issue and failure of IndianKanoon to appear before the Court despite being served with a notice, the Court issued an interim order in favor of the petitioner directing IndianKanoon to remove the name of the petitioner from orders posted on its website until further orders were issued.

Petition before the Delhi High Court

A similar petition is pending before the Delhi High Court in respect of the same matter in the case of Laksh Vir Singh Yadav v Union of India and Ors.[5] . In this case the Petitioner has requested for the removal of a judgment involving his mother and wife from an online case database. The Petitioner in his plea contended that anyone who searches his name on Google will find the aforesaid judgment (of the criminal case) on the second number of search result and consequently giving the impression to everyone that he was involved in some sort of criminal proceeding in India[6].

The next date of hearing is April 24, 2017. It will be interesting to see whether right to privacy of an individual will be protected against the right of public to access information. This judgement by the Delhi High Court will unfold a lot of questions in regard to the new evolving principle of Right to be Forgotten.

Takeaway

To sum up, there is no provision with regard to the Right to be Forgotten in India. The Karnataka High Court, Kerala High Court and Gujarat High Court delivered judgments on separate pleas to have particular judgments removed from online portal and search engine results. The Gujarat High Court dismissed the petition, stating that there was no legal basis to seek removal of a judgment from the Internet, while on the other hand the Karnataka High Court ordered the registry to ensure that any internet search made in the public domain ought not to reflect the petitioner’s daughter’s name and the Kerala High Court ordered the removal of the Petitioner’s name from the one of the Respondents’ website. After these contradictory judgements, it will be interesting to see how the right to be forgotten will be molded by the Delhi High Court. It is pertinent to note that the current petitions before the Court are restricted to cases reported on online databases. It will be interesting to see how the emerging concept will continue to develop in the future.

 


India: NGT fines Noida based water bottling unit INR 10 lakhs


insolvency

In a recent order passed by the National Green Tribunal, Dr. Justice Jawed Rahim (Judicial Member) and Mr. Bikram Singh Sajwan (Expert Member) on February 15, 2017 ordered the Central Pollution Control Board (hereinafter referred to as “CPCB”), State Pollution Control Board (hereinafter referred to as “SPCB”) and Central Ground Water Authority (hereinafter referred to as “CGWA”) to conduct a Joint Inspection and ordered the Beltek Canadian Water Ltd. (hereinafter referred to as the “Respondent”) to deposit a fine of INR 10 lakhs for extracting ground water without permission.

The CGWA has provided guidelines[1] for evaluation of proposals/requests for the withdrawal of ground water. The guidelines focus on a specific part of ground water management viz. ensuring sustainability of ground water usage, both in terms of quantity & quality, and also focus on land based management of ground water resources. The guidelines have been developed taking into account the variations of availability of water in different climatic regions and diverse hydrogeological conditions in various states of the country.

Companies exploiting Ground water have to take into account the following guidelines as notified by the Central Ground Water Authority-

Notified Area

These are areas notified by Central Ground Water Authority for the purpose of Regulation of Ground Water development through Public Notices. There are so far 162 areas which have been notified for the purpose of regulation of ground water development. In these areas permission to abstract ground water through any energized means will not be accorded for any purpose other than for extraction of drinking water. The permission would be granted by the Authorized Officer in consultation with the advisory committee constituted for this purpose.
Infrastructure projects are required to take No Objection Certificate (NOC) for construction of ground water abstraction structures/replacement of existing defunct well for drinking and domestic purpose only. This permission is to be granted in areas where a public water supply system does not exist.

Not Notified Areasstrong

Industries/Infrastructure/Mining

Projects NOC for ground water withdrawal will be considered for Industries /Infrastructure / Mining projects as per the criteria given below.

Category Withdrawal permitted (% of proposed recharge)
Safe NOC is required for ground water withdrawal subject to adoption of artificial recharge to ground water.
Semi critical Withdrawal may be permitted subject to undertaking of ground water recharge measures. The withdrawal should not exceed 200% of the recharged quantity.
Critical Withdrawal may be permitted subject to undertaking of ground water recharge measures. The withdrawal should not exceed 100% of the recharged quantity.
Over-exploited Withdrawal may be permitted subject to undertaking of ground water recharge measures. The withdrawal should not exceed 50% of the recharged quantity

Water Intensive Industries

Industries using ground water as raw material or water intensive industries shall not be granted NOC for ground water withdrawal in Over-Exploited areas. Safe, Semi-Critical & Critical areas NOC for ground water withdrawal is mandatory for these industries. However, ground water withdrawal will be limited as follows:

Category Withdrawal permitted (% of proposed recharge)
Safe Withdrawal limited to 200% of ground water recharge.
Semi- Critical Withdrawal limited to 100% of ground water recharge.
Critical Withdrawal limited to 50% of ground water recharge.
Over- Exploited No permission for Industries under this category.

Infrastructure Projects

  • The quantum of ground water for usage other than drinking or domestic shall not exceed 25% of total ground water abstraction in case of Housing projects or Residential Townships.
  •  Proponents are required to submit a status report stating the quantum of water required and the quantity that would be provided by the Government Water Supplying agency. This should be supported by a letter from the agency.

The complete Guidelines/Criteria for evaluation of proposals/requests for ground water abstraction are available here.

Facts of the Case

Shailesh Singh, a well-known Environmental Activist (hereinafter referred to as the “Applicant”) through application to the National Green Tribunal alleged that the Respondent has been operating a water bottle unit (hereinafter referred to as the “said unit”) which was extracting ground water through bore well installed in the factory premises without the permission of the CGWA and has been discharging untreated effluents into the river. The Inspection Report submitted by CGWA to the Tribunal stated that the said unit had been flouting and extracting water without installation of meter to the respective bore wells.

Applicants Submission:  

  • The Applicant contended that that the Respondent has been utilizing the ground water and exploited it for its commercial benefit since 2009 and the said unit has been discharging untreated effluent contents into the river causing adverse impact on environment.

Respondent’s Submission:

  • The Respondent contended that the said the unit was not actually collecting the water, processing it and bottling it but was selling it after having it packaged.
  • The Respondent denied the Inspection Report of the CGWA and submitted that one bore well was no longer in use and was shut down while another bore well was kept on standby.
  • The Respondent further contended that they had complied with all the observations in the Inspection report of the SPCB, installed meters to all the bore wells and rectified the deficiencies pointed in the Report.
  • The Respondent submitted that the said unit was a small unit and had very limited financial resources. It was argued that restraining or shutting down the said unit would be harsh and severe to the interest of the Respondent.

Decision of the Tribunal:  

The Tribunal issued the following orders-

  • CPCB, SPCB and CGWA were directed to conduct a Joint Inspection, record the extent of utilization of ground water through bore wells which were installed in the said unit and file their report within a period of 2 weeks from this order.
  • Cost of the inspection was to be borne by the Respondent.
  • The Respondent was directed to deposit a sum of10 lakh INR within one week of this order with the CGWA, subject to determination of the amount of environmental compensation, if any on final adjudication. The said amount was deposited by the Respondent on February 21, 2017

The Tribunal permitted the Respondent to use one bore well out of three bore wells and the remaining two bore wells were ordered to be sealed as no permission for their use had been granted by CGWA.


IBBI Recognizes two insolvency professional Entities (IPES) under the insolvency and bankruptcy code, 2016

based-water

The Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the ‘Code’) received the assent of the President of India on May 28, 2016. The code was enacted to consolidate and amend the laws relating ‘to reorganization and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximization of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the order of priority of payment of Government dues and to establish an Insolvency and Bankruptcy Board of India, and for matters connected therewith or incidental thereto.’

Under the Section 240 of the Code, the powers of the Insolvency and Bankruptcy Board of India (hereinafter referred to as the ‘Board’) have been listed. According to the Section, the Board may, by notification, make regulations consistent with this Code and the rules made thereunder, to carry out the provisions of the code as listed in Section 196 and Section 200, in regard with the Insolvency Professional Agencies and utilities.

In November 2016, the IBBI, in exercise of its powers conferred under Section 240 of the Code, had notified the Insolvency and Bankruptcy Board of India (Insolvency Professionals) Regulations, 2016. These regulations inter alia provide for registration, regulation and oversight of insolvency professionals under the Code. These regulations came into effect from November 29, 2016.

According to these regulations, the following categories of individuals are eligible for registration as an insolvency professional:

  •  Advocates, Chartered Accountants, Company Secretaries and Cost Accountants with 10 years’ of post-membership experience (practice or employment) or a Graduate with 15 years’ of post-qualification managerial experience, on passing the Limited Insolvency Examination.
  •  Any other individual on passing the National Insolvency Examination.

However, Advocates, Chartered Accountants, Company Secretaries and Cost Accountants with more than 15 years’ of practice experience may seek registration, without any examination but by getting registered under the Code.

A limited liability partnership, a registered partnership firm and a company may be recognized as an insolvency professional entity if a majority of the partners of the limited liability partnership or registered partnership firm or a majority of the whole-time directors of the company are registered as insolvency professionals under the Code. An insolvency professional may use the organizational resources of a recognized insolvency professional entity subject to the condition that the entity as well as the insolvency professional shall be jointly and severally liable for all acts of omission or commission of its partners or directors as insolvency professionals.

On March 6, 2017, The Insolvency and Bankruptcy Board of India (IBBI) recognised two Insolvency Professional Entities (IPEs) in exercise of its power under section 240 of the code and Regulation 5 of the Insolvency and Bankruptcy Board of India (Insolvency Professionals) Regulations, 2016. The two recognised IPEs are IRR Insolvency Professionals Private Limited and AAA Insolvency Professionals LLP.

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