Right to be Forgotten: An Analysis of the Indian Position

The Right to be Forgotten or the right to be left alone is a right that emerges from the Right to Privacy. It, essentially, means that a person has the right to get their personal information removed from public resources if they wish so. This right was recently established in the case of Google v Agencia Espanola de Proteccion de Datos, Costeja Gonzalez.[1] In the case, the European Court of Justice ruled that the citizens of the European Union have the right to get their personal information removed from commercial search firms if that information is no longer relevant. The right to privacy was held onto a higher pedestal that the search engine’s model for profit. However, it is to be noted that the right to be forgotten was not deemed to be an absolute right and would not be entertained if the publication of the information is in pursuance of freedom of speech and other legal obligations.

The Supreme Court of India had recognized the Right to Privacy as a fundamental right in the case of KS Puttuswamy v Union of India.[2] The Court had observed that ‘right of an individual to exercise control over his personal data and to be able to control his/her own life would also encompass his right to control his existence on the Internet.’ This formed a foundation for recognition of the Right to be forgotten as a person is entitled to their privacy and can choose the information available in public.

Origin of the Question and the Answer in India

One of the earlier cases where this question came before Indian courts was the case of WP(Civil) 9478/2016 where the Kerala High Court ruled that the name of a rape victim can be removed if published on a third-party website. Later, Delhi High Court in the Zulfiqar Ahman Khan v Quintillion Businessman Media Pvt. Ltd[3] case undertook the task of providing a thorough definition of right to be forgotten which was avoided until then. Similarly, the Orissa High Court in the case of Subhranshu Rout v State of Odisha, while considering a bail application, went on to explain the right to be forgotten and upheld it to individuals as a matter of right to privacy.

Delhi High Court’s Recent Judgement

The position was resonated in Justice Pratibha Singh’s judgement in the recent case of Jorawer Singh Mundy v Union of India.[4] In this case, the Petitioner was an American citizen of Indian origin. During his visit to India in 2009, he was accused under the Narcotics Drugs and Psychotropic Substances Act, 1985. However, in 2011, he was acquitted of all charges and his acquittal was upheld in 2013. The petitioner alleges that after this when he went back to the US, he was faced with prejudice and disadvantage as the texts of the judgements was freely available on the internet. The petitioner had sent a legal notice to the concerned websites but only one removed the judgements and the rest are attached as respondents. The petitioner requests the Court to direct the respondents to remove the judgment and thereby protect his right to be forgotten.

In her judgement, Justice Singh re-iterated the position in the KS Puttuswamy judgement in the absence of a legislation to that effect. The judgement also made reference to the Delhi High Court’s own judgement in Zulfiqar Ahman Khan v Quintillion Businessman Media Pvt. Ltd., where the Court recognized that a person’s personal and professional life can be hampered if appropriate relief is not granted against publication or republication of data. The court additionally observed that “Accordingly, recognising the Plaintiff’s Right to privacy, of which the ‘Right to be Forgotten’’ and the ‘Right to be Left Alone’ are inherent aspects, it is directed that any republication of the content of the originally impugned articles dated 12^th October 2018 and 31^st October 2018, or any extracts/or excerpts thereof, as also modified versions thereof, on any print or digital/electronic platform shall stand restrained during the pendency of the present suit.”

In the present case, the Court noted that since the person was ultimately acquitted of all charges, the freedom of expression cannot be considered to be overt in such a case. The underlying prejudice and suspicion for an acquitted person entitles the person to some protection from the Court in pursuance of their Right to be Forgotten. In the Mundy case, therefore, the respondents were directed to remove the judgements of acquittal and google was asked to block the content from coming up in a search.

A similar approach was also undertaken in the recent case before the Delhi High Court in the case of X v Youtube Channel,[5] where an actress filed a suit against republishers of her explicit videos and the court granted her protection iterating the right to be forgotten.

Conclusion

There is no formal legislation in India yet that scrutinizes the need for the Right to be Forgotten. However, the judicial precedent leads towards acceptance of the right. The government has also recently tabled the Personal Data Protection Bill. The Bill attempts to provide the citizens with more autonomy over their data and encapsulates the theory behind the EU’s General Data Protection Regulation.

Despite the progressive idea that is brought forth by such pronouncements and legislations, there has to be a mechanism that ensures that the right does not become an absolute one. It is to be noted that there is a lot of information in the public sphere that is part of the public records. If all the information is forbidden from dissipation, this might cause a disruption in the authenticity of records and the information associated with it. The right to be forgotten has to be harmoniously constructed with the right to information and the freedom of expression. It would be prudent to observe how the right plays out with the other rights and legislations like the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 which provides for a grievance redressal mechanism to individuals against information in public.

With the recent trend, it is clear that the jurisprudence in India on the right to be forgotten is still developing and might usher a new age in matters of right to be privacy in an entirely public world.

References :

[1] Google v AEPD and Mario Costeja Gonzalez, ECLI:EU:C:2014:317

[2] KS Puttuswamy v Union of India, (2015) 8 SCC 735

[3] Zulfiqar Ahman Khan v Quintillion Businessman Media Pvt. Ltd, (2019) SCC OnLine Del 8494

[4] Jorawar Singh Mundy v Union of India (2021) SCC OnLIne Del 2306

[5] X v HTTPS://WWW.YOUTUBE.COM/WATCH?V=IQ6K5Z3ZYS0, (2021) SCC OnLine Del 4193