To be or not to be forgotten?

Yesterday (19.08.2021), the High Court of Delhi issued notice to the Union Government to file a counter affidavit while hearing a case wherein the petitioners sought deletion/ delinking of information related to a past arrest, invoking their Right to be Forgotten. In today’s digitised world where public memory is immortalised by the various search engines, the ghosts of our trials past seems to be coming back to haunt us, despite acquittals, compounding of charges or even diminished relevance to any current public interest. On the other hand, judicial orders constitute vital public information and safeguarding one’s right to privacy through erasure of records runs the risk of enabling misuse of any given right to be forgotten.
In the absence of any explicit law that enshrines the citizens’ Right to be Forgotten, this right has been often read into Article 21 of the Indian Constitution by the Indian Courts. The Right to be Forgotten was even recognised by Justice BN Srikrishna Committee in their draft of the Personal Data Protection Bill, 2018. Ironically, exactly 6 years ago IFF had intervened in a case before the High Court of Delhi in a Right to be Forgotten Case, asking whether such a right actually falls within our constitutional scheme.
The conundrum regarding the privacy implications of the right to be forgotten versus the threats it poses to the citizens’ right to information has been a prolonged debate with different courts ruling on competing claims.

  • Delhi High Court- The Delhi High Court has seen to be taking a lenient view of the Right to be Forgotten in several of its judgments. In March 2021, the court passed an interim order directing the removal and delinking of records about an American citizen of Indian origin, acquitted in a NDPS case, from all search engines and online court order repositories. Similarly, in July 2021 in a similar case moved by a reality show winner seeking erasure of the records of a resolved drunken altercation case from public portals since it blemishes his reputation, the Court issued notices to Google and the Union Government.

  • Madras High Court- Earlier this month, the High Court of Madras refused to redact the records of a petitioner who was acquitted in a criminal matter, observing that the Right to be Forgotten lacked any statutory backing. The court observed that the only exception can be drawn here would be to victims of sexual offences.

  • Karnataka High Court- In 2017, the Karnataka High Court permitted the erasure of records to a petitioner who sought the annulment of her marriage under the aegis of the Right to be Forgotten.

  • Kerala High Court- The Kerala High Court is currently hearing a writ petition seeking removal of online records about past trials. Indian Kanoon, an online public repository of court order filed a counter affidavit in January, 2021, opposing the prayers and highlighting that right to privacy cannot be used to prevent access to judicial records, unless there are expressed statutory provisions permitting it.

  • The European Court of Justice- Article 17 of the European Union General Data Protection Regulation (GDPR) confers the right upon the data subject to request data processors to remove personal data about themselves from the internet. Relying on this, in Google Spain vs AEPD and Mario Costeja Gonazalez (2014), the European Court of Justice ordered Google to remove “inadequate, irrelevant or no longer relevant” data from its search results, when a member of the public requests so.

Concerns regarding the Right to be Forgotten

Dovetailing the Right to be Forgotten to the Right to Privacy of the citizens evokes a major concern regarding its adverse impact on the Right to Freedom and Expression guaranteed under Article 19(1) of the Indian Constitution. The claims for erasure are often vague and broad and lack any statutory backing. At the very outset, it must be understood that the Right to Privacy as has been interpreted by the judiciary is limited to the obligations of the state authorities to adhere to the fundamental rights. However, any Right to be Forgotten will directly be imposed upon private parties like search engines, media portals, legal databases etc. Therefore the Right to be Forgotten is beyond the limits of the Right to Privacy. Even in its consideration by the Justice Srikrishna Committee, the Right to be Forgotten was subject to the factors like sensitivity of personal data, scale of disclosure, degree of accessibility sought to be restricted, role of the data principal in public life and the nature of disclosure among other variables. More importantly, the Right to be Forgotten cannot be considered in isolation without a comprehensive statutory framework for data protection which carefully balances the right to privacy with other rights such as free speech and the right to information.
IFF continues to engage with cases regarding the Right to be Forgotten due to its plausible implications on the constitutional guarantee of freedom of speech and expression.