This post is authored by Krishnesh Bapat
The right to be forgotten empowers individuals to seek de-indexing, erasure, or deletion of their personal data. The right is significant because it enables an individual to “determine the development of their life in an autonomous way, without being perpetually or periodically stigmatised because of specific actions performed in the past”. However,the right to seek the erasure of information from the public domain conflicts with the right to freedom of expression and the right to access information. Thus, even jurisdictions that statutorily recognise the right to be forgotten enforce it in limited circumstances.
In 2014, the European Court of Justice (ECJ) recognised the right in Google Spain SL and Google Inc v Mario Costeja González where the court directed Google to de-index a newspaper article because it disclosed the financial history of the petitioner. De-indexing would remove the site from the search engine’s index (in this case, Google’s) but not from the source web page. The Court noted that in general the petitioner’s (i.e., the data subject’s) rights would override Google’s (i.e., the data controller’s) legitimate interest of prominently publishing the article, however a balance had to be struck depending on the nature of the information, particularly if the information was of interest to the public. In another judgment, Google LLC v CNIL the ECJ ruled that an obligation on a search engine to de-index a webpage for users in the EU did not extend to de-indexing the page in other jurisdictions. Subsequently, Article 17 of the General Data Protection Regulation of the European Union gave statutory recognition to the ‘right to be forgotten’. This Article empowers data subjects to seek the erasure of their personal data, if, among other things,there is no overriding legitimate cause (such as public interest) in the continued processing of their data.
In India, the right is yet to gain statutory recognition. Clause 20 of Data Protection Bill 2021 (‘DPB’), which has been recently scrutinised by a Joint Parliamentary Committee, recognises the right of data principals (i.e., individuals) to prevent the ‘continuing disclosure’ of personal data, if: (i) it has served the purpose for which it was collected or is no longer necessary for the said purpose; (ii) consent for such processing is withdrawn; or (iii) if the disclosure is contrary to any law. However, the right can only be enforced by an order of an Adjudication Officer appointed under the DPB. To get a favourable order, the data principal must demonstrate to the Officer that the interest in preventing the continued disclosure of their data overrides the right to freedom of speech and expression and the right to information of other citizens and the right of the data fiduciary to retain, use and process such data in accordance with provisions of DPB.
While the DPB is yet to be enacted into law, the Privacy High Court Tracker, launched by the Centre for Communication Governance as a part of its Privacy Law Library shows that High Courts across the country have begun to determine the contours of the right to be forgotten as applicable to Indians. Most notable is the Orissa High Court’s decision in Subhranshu Rout @ Gogul v the State of Odisha. This case did not involve a pleading seeking erasure of information. Instead, the discussion on the right to be forgotten arose when a person accused of sexually harassing a woman and uploading images of her on Facebook sought bail. In its judgment rejecting the bail application, the Court noted that while the Indian criminal justice system prescribes strong penal action against the alleged actions of the bail applicant, it did not provide any mechanism to delete the objectionable material from social media permanently. The Court found that allowing such offensive material to remain on social media was an affront to the victim’s privacy rights. The Court discussed the right to be forgotten extensively but did not order the removal of the objectionable material because of a lack of enabling legislation. At the same time, the Court permitted the victim to approach the Court separately, for the erasure of the offensive posts.
The Orissa High Court in Subhranshu Rout was presented with facts that did not require balancing the victim’s rights with the public interest. Unlike the Orissa High Court, the Delhi High Court, on at least two occasions, has passed interim orders enforcing the right to be forgotten against content that may have been in the public interest. The first was the case of Zulfiqar Ahman Khan v Quintillion Business Media. In Zulfiqar, the plaintiff had sought a permanent injunction against the defendant, which had published two articles documenting sexual harassment complaints against him as a part of the #MeToo campaign. After the defendants had agreed to take down the article during the pendency of the suit (without prejudice to their rights), the plaintiffs asked for an injunction against re-publication of the article by third parties. Again, this was not an application seeking erasure of information. Instead, it was a case of plaintiff seeking enforcement of injunction against re-publication of previously injuncted content. But in paragraph 9, the Court cited the right to be forgotten of the plaintiffs as one of the reasons to prevent re-publication of the article. However, the Court did not explain why the plaintiff’s right to privacy should be protected over the right to freedom of speech of the defendants and the right to information of the public at large.
The second case was an interim order in Jorawar Singh Mundy v Union of India where the petitioner sought the removal of a reported judgment from the public domain. In the judgment, the petitioner’s acquittal was upheld by the Delhi High Court. The petitioner’s grievance was that he faced a considerable disadvantage in seeking employment because the judgement showed up whenever anyone conducted a background verification on him. The Court directed Google to de-index the judgment and directed Indian Kanoon (the website where the judgement was posted) to block the judgement from being accessed via search engines. This interim order is subject to change based on the final decision of the Court, but this case is significant because in Jorawar, unlike the cases mentioned above,the petitioner expressly sought enforcement of his right to be forgotten which was granted by the Court.
However in a similar case, the Madras High Court in Karthik Theodre v Registrar General, Madras High Court, in its final decision dated 3 August 2021, adopted a different approach. The petitioner, therein, also sought destruction or erasure or redaction of personal information from a court decision (a judgment of acquittal) that was available in the public domain. While in its interim order, the Court found that a prima facie case was made out for redacting his name, the final judgment recorded that granting such a plea would lead to ‘utter confusion’ in the absence of a proper policy. The Court also observed that it would be more appropriate to await the enactment of data protection legislation which might provide an objective criterion to be followed while dealing with pleas of redaction of names of accused persons who were acquitted from criminal proceedings.
The Supreme Court has also considered the balance between the right to privacy and freedom of speech and expression in the context of judicial orders in R. Rajagopal v State of Tamil Nadu. In that case, the Court recognised that the right to privacy is implicit under Article 21. Still, it did not extend the protection to individuals from publications based on public records, including Court records. The Apex Court also noted that the exception to this rule must be carved out in cases involving a female victim of sexual assault who ‘should not be subjected to the indignity of [being identified by] her name.’ Considering the ease with which personal data can be accessed in the digital age, the scope of the exception may be expanded to include those cases where the publication of a judgment is unjust – as in the case of Jorawar Singh Mundy,where continued publication of the petitioner’s case did not contribute to public discourse but adversely affected his life. However, as the Madras High Court correctly points out, this should not be done in an ad-hoc manner without objective criteria, ideally provided by legislation or a policy formulated by courts themselves.
Nevertheless, until such criteria are enacted in the form of data protection legislation, which may take a while, the High Courts will continue to formulate the law on the right to be forgotten. The Madras High Court may have passed the buck to the legislature, but the Delhi High Court or the Kerala High Court where another case is pending, may not do so. But consistency across courts, especially in the context of judicial orders, is necessary.
Disclaimer – The author is part of the legal team representing Indian Kanoon in a case related to the right to be forgotten which is pending before the Kerala High Court