This post is authored by Thulasi K. Raj.
In January 2021, Indian Kanoon, the legal case law database argued before the Kerala High Court that requiring de-indexing of search results in the guise of privacy rights under Article 21 of the Constitution of India restricts the right to free speech. The petitioner in this case was aggrieved by the display of personal details including his name and address on Google, via Indian Kanoon. This has rekindled the debate on the right to be forgotten (“RTBF”) and its ambit in the Indian legal framework.
When we walk down the street, various personal identifiers such as one’s skin colour, approximate height, weight and other physical features are unconsciously communicated to others. It would be strange indeed, if the right to privacy required us to erase these memories, which we involuntarily capture in normal social life.
What makes digital memory different, however is its relative permanency. A digital device can store data more or less permanently. Schönberger explores how human forgetfulness is problematically replaced by perfect memory in his aptly titled book ‘Delete: The virtue of forgetting in the digital age.’ He rightly remarks that the “balance of remembering and forgetting has become inverted.” Remembering is now the default, “and forgetting, the exception.” If a derogatory news report from several years ago emerges in search results, it can momentarily damage one’s reputation and infringe upon privacy. This is where RTBF becomes significant.
Recital 65 of the EU’s General Data Protection Regulation (GDPR) acknowledges a “right to be forgotten”, i.e., for the personal data to be erased on certain occasions. One, where the data is no longer necessary in relation to the purpose for which it was collected. Two, where the particular individual has withdrawn their consent or objects to their data being processed or three, where the personal data does not comply with the GDPR. Recital 66 strengthens this right as it requires the data controller that made the personal data public, to inform other controllers that may also be processing the same personal data to also remove links or copies.
The privacy argument behind the RTBF is that firstly, one must have control over one’s personal information. This includes personal details, contact information or search engine queries. Moreover, the individual, according to Mantelero, has a right not to be reminded of her previous acts, “without being perpetually or periodically stigmatized as a consequence of a specific action.” It enables her to regain control over her past, to decide as to which parts of her information should be accessible to others and which not.
The decision by the European Court of Justice (‘ECJ’) in Google Inc. v. AEPD in 2014 brought the discussion on the RTBF to mainstream political and academic debate. In this case, one Mario Costeja González in Spain, found that when his name was searched on Google, the results included a newspaper announcement of a real estate auction for recovery of his social security debts. He approached Agencia Española de Protección de Datos (AEDP), the Spanish Data Protection Agency seeking removal of the information from Google. The claims against Google were allowed and Google appealed to the high court in Spain. The matter was then referred to the ECJ. The court recognised the RTBF under the 1995 EU Data Protection Directive, for the first time, and held that search engines must remove ‘inadequate, irrelevant, or excessive’ personal information about users.
In India, clause 20 of the Personal Data Protection Bill, 2019 recognises RTBF when any of the three conditions are satisfied: when retention of information is unnecessary, consent given for disclosure of personal data is withdrawn, or when retention of data is illegal. Unlike the EU, adjudicating officers have to determine whether these conditions are met before ordering for withholding of the information. The Supreme Court has made references to RTBF in the Puttaswamy judgment. Various High Courts also have discussed this right while considering pleas of removal of information from search engine results. Although such pleas are allowed in some cases, it is difficult to find an authoritative judicial pronouncement affirmatively and comprehensively locating a right to be forgotten in the Indian legal framework.
An objection against recognition of the RTBF is its conflict with the right to free speech, especially in jurisdictions like the US where search engines claim the right to free speech. For example, while search engines are required to cease retaining personal information, they often argue that such requirement violates their right to freedom of speech. They claim that the right to display information is part of the right to free speech since it involves collection, selection, arrangement and display of information. For instance, in Langdon v. Google Inc. in the United States, Google has argued that the kind of function the search engine engages is not fundamentally different from that of a newspaper editor who collects, sorts and publishes information, and is therefore entitled to a comparable right to free speech.
In India, free speech rights of search engine companies are not categorically adjudicated on so far. The right to free speech is available to citizens alone under Article 19 of the Constitution. But the Supreme Court in Chiranjit Lal Chowdhuri held that fundamental rights are available not only to citizens, but “corporate bodies as well.” The Court has also held in Delhi Cloth and General Mills that the free speech rights of companies are co-extensive to that of shareholders and denial of one can lead to denial of the other. This jurisprudence might enable search engine companies, such as Indian Kanoon in India to make a free speech argument. However, the courts will be confronted with the critical question of how far search engine companies that collate information can be treated in par with companies engaged in printing and publishing newspapers.
The determination of the Indian Kanoon case will depend among other things on two aspects, from a rights perspective: firstly, whether and to what extent the court will recognise a right to be forgotten under the Indian law. This argument could rely on an expansive understanding of the right to privacy, especially informational privacy under Article 21 in the light of the Puttaswamy judgment. Secondly, whether search engines will be entitled to a free speech claim under Article 19. It remains to be seen what the implications of such a recognition will be, for search engines as well as for users.
(The author is a practising lawyer and a DIGITAL Fellow at the Centre for Communication Governance at National Law University, Delhi).