The Right to be Forgotten by Somesh Vaidya @LexCliq

The Delhi High Court has recognised the Right to Be Forgotten, ordering Google and Indian Kanoon to delete a judgement. But what exactly is this right, and how does it connect to the Right to Privacy?

In general, the Right to be Forgotten refers to the right to have publicly accessible personal information about an individual removed from the internet, search engines, databases, websites, or any other public platform. The right to be forgotten has been recognised by law in the European Union under the General Data Protection Regulation, or GDPR, and has been confirmed by numerous courts in the United Kingdom and Europe, but there is no such legislation in India. Although the Personal Data Protection Bill 2019, introduced in the Indian Parliament by the Ministry of Electronics and Information Technology and currently being reviewed by a Joint Parliamentary Committee (JPC) in collaboration with experts and stakeholders, clearly included and granted the Right to be Forgotten in Clause 20, which allowed an individual to restrict or prevent the further processing of personal data, if the data is;

  • has fulfilled its function or is no longer required for the reason for which it was gathered
  • was created with the data principal’s permission under section 11, and such consent has now been withdrawn
  • was created in violation of the provisions of this Act or any other currently in force legislation

The bill has not yet become law, but it is not as if the right is not recognised in India since there is where the courts come in. In August 2017, the Supreme Court recognised the Right to Privacy in Justice K.S. Puttaswamy vs Union of India, ruling that the Right to Privacy is an intrinsic part of the Right to Life and Personal Liberty under Article 21 of the Constitution, and this is what the Right to be Forgotten has been linked to since then and in this judgement.

The Supreme Court explicitly said that an individual’s right to exercise control over his or her personal data and to be able to manage his or her own life includes the right to control his or her presence on the internet.

This happened in August 2017, although two other High Courts had the chance to examine this right a few months earlier, and each took a different route. In Dharamraj Bhanushankar Dave versus State of Gujarat, the Gujarat High Court ruled on a petition filed by one Dharam Raj Bhanushankar Dave, who was earlier acquitted in a kidnapping and murder case by the same court and asked that the decision not be made public.

The Gujarat High Court refused to grant him relief, noting that the petitioner had not been able to point out any specific provision of law that had been violated, and that the petitioner had not relied on the term and phrase Right to be Forgotten as such, but the Karnataka High Court in Sri Vasunathan v. The Registrar General took a different approach, specifically recognising the Right to be Forgotten and ruling that: in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned, this was done in line with the trend in Western countries.

However, after the Right to Privacy judgement in August 2017, the High Courts took a wider view of the issue, expressly recognising the Right to be Forgotten and the Right to be Left Alone.

In Zulfiqar Ahman Khan v. Quintillion Businessman Media, for example, Zulfiqar Ahman Khan petitioned the Delhi High Court, asking that two articles published against him on the news website The Quint be suppressed on the basis of anonymous harassment allegations. While the news site deleted the articles while the case was ongoing in the high court, the high court also barred the content of those two pieces from being reprinted throughout the course of the litigation.

The Delhi High Court held that the Right to be Forgotten and the Right to be Left Alone are two essential aspects of the Right to Privacy, which has been recognised an inherent part of Article 21 of the Indian Constitution. In Gugul v. State of Odisha, the Orrisa High Court examined the Right to be Forgotten as a remedy for victims of sexually graphic images or films frequently shared on social media platforms by spurn lovers to frighten and harass women, lamenting the lack of a mechanism to permanently wipe material from the internet in order to protect the right to be forgotten and calling for a debate on the issue. Also recently, the Kerala High Court approved the petitioner’s plea to have his or her personal information deleted from a Google search result.

The latest Judicial order (Jorawar Singh Mundy vs Union of India) that acknowledged the Right to be Forgotten, the court was considering a plea made by one Jorawar Singh Mundy, an American citizen by birth but of Indian descent, who was charged in a narcotics case while visiting India in 2009 but was cleared by both the trial and the Delhi High Court. Mundy subsequently went to the United States and studied law, informing the Delhi High Court that whenever a prospective employer conducted a background check on him using Google, it led them to his judgement, which he blames for his lack of work so far.

As a consequence, he asked that the verdicts be removed from three websites: Google, Indian Kanoon, and vLex. vLex took it down while the matter was being heard in court, and the Delhi High Court recognised the irreparable damage it may have done to Mundy’s social life and professional prospects, despite the fact that he was eventually acquitted, and granted him interim protection. The judgement was ordered to be deleted from Google’s search results, and India Kanoon was directed to prevent the judgement from being accessible via search engines like Google and Yahoo.

Is the Right to Forget an Absolute Right?
The Right to be Forgotten is not an absolute right in the sense that not every request for removal will be granted. The Supreme Court did offer some clarification on this by stating that accepting this right does not imply that all elements of previous life must be erased, since some may have societal ramifications. It essentially said that it could not be erased if the data is needed for:

  1. exercising the right to free speech, expression, and information.
  2. If it is required to comply with legal requirements.
  3. If it is required for the completion of a job in the public interest or for the protection of public health.
  4. If it is required for archival purposes in the public interest.
  5. If information is required for scientific, historical, or statistical research purposes.
  6. If it is required for the creation, exercise, or defence of legal claims.

Another point raised by the Delhi High Court regarding the absoluteness of the Right to be Forgotten in Mundy’s Judicial Order is that when a court order is requested to be removed, the court must consider the petitioner’s right to privacy on the one hand, as well as the public’s right to information, openness, and judicial records on the other.

As can be seen, India’s jurisprudence on the right to be forgotten is still in its early stages, so we’ll have to wait and see how it develops over time.

Article by Somesh Vaidya

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