Do you have a ‘right to be forgotten’? Here’s what it means and how Indian courts view it

'Right to be forgotten' is the right to have publicly available personal info removed from internet search, databases, websites or other public platforms once it's no longer relevant.

Delhi High Court | delhihighcourt.nic.in

New Delhi: In an interim order passed last month, the Delhi High Court recognised the ‘right to be forgotten’ while directing Google and IndianKanoon to remove a judgment pertaining to an American citizen of Indian origin.

Justice Pratibha M. Singh directed removal of a judgment passed in 2013 by Justice Mukta Gupta of the Delhi HC, acquitting the petitioner, Jorawer Singh Mundy.

Mundy had now approached the HC claiming that this judgment appearing on Google and IndianKanoon sullied his efforts to get a job.

Taking note of the “irreparable prejudice” that may be caused to Mundy’s “social life and his career prospects” despite him having been ultimately acquitted, the court granted him interim protection. Google was asked to remove the judgment from its search results and Indian Kanoon was directed to block the judgment from being accessed by using search engines such as Google and Yahoo.

While the case will be next heard on 20 August, such an interim relief becomes possible because of the ‘right to be forgotten’, which the Delhi HC took note of.

What is the ‘right to be forgotten’?

The ‘right to be forgotten’ is the right to have publicly available personal information removed from the internet, search, databases, websites or any other public platforms, once the personal information in question is no longer necessary, or relevant.

The right to be forgotten has been recognised as a statutory right in the European Union under the General Data Protection Regulation (GDPR), and has been upheld by a number of courts in the United Kingdom, and in Europe.

In India, there is no law that specifically provides for the right to be forgotten. However, the Personal Data Protection Bill 2019 recognised this right.

Section 20 of the Bill gave an individual the right to restrict or prevent the continuing disclosure of their personal data when such data (1) has served the purpose for which It was collected, or is no longer necessary for said purpose; (2) was made with the consent of individual, which consent has since been withdrawn; or (3) was made contrary to the PDP Bill or any law in force.

However, the provision made this right enforceable only on an order passed by the adjudicating officer appointed under the Bill. While passing such an order, the adjudicating officer is required to take several things into account, including (1) the sensitivity of the personal data, (2) the scale of disclosure and degree of accessibility that sought to be restricted or prevented, (3) the role of the individual in public life, (4) the relevance of the personal data to the public, and (5) the nature of the disclosure and of the activities of the individual.

What the courts have said

While the Personal Data Protection Bill hasn’t become a law yet, courts have expressly recognised the right to be forgotten in their judgments, taking note of international jurisprudence on this right.

In his concurring opinion in the landmark right to privacy judgment, Justice Sanjay Kishal Kaul had observed that the “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”.

Months before this verdict, the Gujarat High Court was approached by one Dharamraj Bhanushankar Dave, demanding removal of a judgment acquitting him in a kidnapping and murder case, passed by the same court. However, the HC refused to grant him relief, noting that Dave had not been able to point out specific provisions of law that had been violated.

The same month, the Karnataka HC took a different approach and recognised the right to be forgotten “in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned”, “in line with the trend in the Western countries”.

However, since the right to privacy verdict, high courts have taken a broader view of the issue, expressly recognising the right to be forgotten as well.

‘Information in public domain is like toothpaste’

Back in May 2019, soon after the #MeToo wave hit the country, the Delhi HC was petitioned by one Zulfiqar Ahman Khan, who demanded removal of two articles written against him on TheQuint, on the basis of anonymous harassment allegations against him.

While the news portal took down the articles while the case was pending, the high court also barred any republication of the content of the two articles during the pendency of the suit. In doing so, it opined that the right to be forgotten and the right to be left alone are “inherent aspects” of the right to privacy.

In November 2020, the Orissa High Court examined the right to be forgotten as a remedy for victims of sexually explicit videos/pictures often posted on social media platforms by spurned lovers to intimidate and harass women.

The court had noted that “information in the public domain is like toothpaste, once it is out of the tube one can’t get it back in and once the information is in the public domain it will never go away”.

The court was hearing a bail application filed by a person accused of raping a woman and uploading photos and videos of the act on Facebook to blackmail her. While denying him bail, the court looked into the international case laws on the right to be forgotten, while highlighting the need to recognise the right to be forgotten in cases like these.

When can the right be exercised?

In the right to privacy judgment, the Supreme Court had clarified that the recognition of this right “does not mean that all aspects of earlier existence are to be obliterated, as some may have a social ramification”.

It explained: “If we were to recognise a similar right, it would only mean that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data/information is no longer necessary, relevant, or is incorrect and serves no legitimate interest.”

The apex court asserted that this right cannot be exercised where the information or data is necessary for: (1) exercising the right of freedom of expression and information; (2) compliance with legal obligations; (3) the performance of a task carried out in public interest, or public health; (4) archiving purposes in the public interest; (5) scientific or historical research purposes or statistical purposes; or (6) the establishment, exercise or defence of legal claims.

In its order in the Jorawer Singh Mundy case, the Delhi HC also noted that where a court order is demanded to be taken down, the court will be required to examine the right to privacy of the petitioner on one hand, and the right to information of the public and maintenance of transparency in judicial records on the other hand.