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‘Right to be Forgotten’ finds steam in India, high courts seized of multiple petitions

While a 2017 judgment recognised the ‘right to be forgotten’ as part of ‘right to privacy’, online platforms argue it can have a bearing on right to information in some cases.

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New Delhi: Recognising ‘right to be forgotten’ as part of ‘right to privacy’, the Supreme Court on 18 July ordered its registry to work out a mechanism to remove personal details of litigants entangled in matrimonial litigation.

A bench led by Justice Sanjay Kishan Kaul saw merit in the woman’s plea, which said her personal information, such as her husband’s name and residential address should either be deleted or masked from the judgment of her case that is now uploaded on the SC website, from where it has been shared by different online platforms. The woman’s name is already masked.

In the case the wife had claimed she was a victim of rape and also charged her husband of spreading “infection of a disease dangerous to life”. The woman had lost her case both before the Karnataka High Court and Supreme Court, which quashed rape charges on the ground that there was “immunity in law to husbands against the said offence”.

Even though the two judgments masked her identity, it revealed that of her husband, allowing acquaintances to link her with the case. This, she told the bench, was causing her “immense loss” by way of social stigma. This sort of public visibility was an invasion of her right to privacy, which includes the right to be forgotten.

Her plea for the right to be forgotten in SC was supported by her husband. The woman’s counsel said the court judgments popped up each time someone entered key words such as ‘matrimonial dispute’, ‘sexual offence’ or any other related terms on a search engine.

The woman has already moved a similar plea before the Karnataka High Court as well.

The case is among multiple petitions filed on the issue of ‘right to be forgotten’.

Recognised as an aspect of right to privacy in the landmark 2017 judgment in the K.S. Puttaswamy vs Union of India case, this right has come into play off late in many cases filed in various high courts across India.

Most of these cases have resulted in interim relief for the petitioners, barring a few exceptions.

Meanwhile, in a batch of petitions pending before the Delhi High Court, Google India recently argued that the right to be forgotten can have different “shapes and shades”, contending blanket orders cannot be passed in cases where this right has been demanded.

ThePrint examines the right to be forgotten, its origins, past orders and conflicting court judgments on this contentious issue.


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


Right of erasure

The right to be forgotten refers to the right to have private information removed from the internet under certain circumstances. It proceeds on the basis that an individual must decide the course of their life in an autonomous manner, without being ‘stigmatised’ due to an action of the past.

It has found steam in India post the K.S Puttaswamy vs Union judgment.

The right to privacy has been recognised implicitly in Article 21 (the right to life and liberty). In Puttaswamy, the Supreme Court had noted the existence of such a right. Referring to a regulation which had allowed the Unique Identification Authority of India (UIDAI) to retain authentication transaction data for six months and archive the same for five years, the court noted the infringement of such a right.

“The right of the citizen to erasure of data or the right to be forgotten is severely affected by such regulation”, the Supreme Court judgment said.

Since the issue has come more into the spotlight, with an ever-increasing use of technology in all domains, the proposed Personal Data Protection Bill introduces the concept of right to be forgotten. The draft law envisages creation of an authority where one can apply to restrict dissemination of information that may be private in nature and is sensitive, impacting one’s life.

Internationally, the General Data Protection Regulation of the European Union governs how personal data must be collected, processed and erased. The right to be forgotten, which received a lot of press after a 2014 judgment from the EU Court of Justice — which said that Google must delete “inadequate, irrelevant or no longer relevant” data if requested — set the precedent for the right of erasure provision contained in the regulation.

‘Shapes and shades, different situations’

Since the right to be forgotten can have a bearing on “right to information” — an equally crucial right for larger public interest or State’s legitimate needs — online platforms have argued the former cannot be available to all individuals under all circumstances.

On Wednesday, Google India contended before Justice Yashwant Verma’s bench that such a right has various ‘shapes and shades’.

Senior Counsel Arvind Nigam, appearing for Google India, contended that the application of the right to be forgotten differed in different cases and that grey area still exists between the two rights — to privacy and to be forgotten. Therefore, nuanced application of the matter was required.

Acquitted, but tainted

The Delhi High Court is seized of multiple petitions where individuals have approached the court demanding removal of their particulars from various social media platforms.

Nigam spoke of a 2021 decision of the Delhi HC, which, he said, was having a ‘snowballing effect’.

In the 2021 case, one Jorawar Singh Mundi had sought deletion of a judgment in a case, in which he was ultimately acquitted, from the internet.

Mundi, an American-Indian citizen, had been accused in 2009 of an offence under the stringent anti-drug law, Narcotic Drugs and Psychotropic Substances, Act, 1985. He was subsequently cleared of all charges in 2011.

However, he contended that despite having a stellar academic record, he was unable to gain employment due to the presence of the judgment online.

Deciding his plea, Justice Pratibha Singh had said that the issue requires an examination of the interplay between the petitioner’s right to privacy and the public’s right to information, as well as the maintenance of judicial records.

However, due to the irreparable injury that may be caused to Mundi, Justice Singh granted him interim protection, ordering deletion of the judgment from Google and the famous website for judgments, Indian Kanoon.

Since then, the Delhi HC’s decision has been frequently cited before various high courts where the petitioners have sought deletion of such details from the internet.

Consider another decision from 2020 before the Orissa High Court. In the case of intimate pictures being shared, the High Court had used an analogy of a toothpaste to describe information flow.

“In fact, the 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,” it had said.

The Court, lamenting the lack of a right to be forgotten, had called for such a right.

In the same vein, another decision from 2021, this time of the Kerala High Court, had allowed deletion of such personal details from a Google search result.


Also read: Bigg Boss winner’s plea shows ‘right to be forgotten’ cannot be viewed on a case-to-case basis


‘Cannot be redacted’

Interestingly, all high courts have not decided uniformly on the subject.

Last year’s decision of the Madras High Court held that a person’s name cannot be redacted from its judgment posted online, despite his acquittal.

In the case before the HC, the petitioner had sought redaction of his name from court judgments and orders. The Madras HC had initially allowed the appeal, with a view that the accused, on acquittal, was entitled to get his name redacted.

However, ultimately, the judge said that such a right to be forgotten cannot exist when it comes to judgments of the court.

The conflicting decisions of such high courts may ultimately require resolution by the Supreme Court, especially in light of the Court’s decision in the K.S. Puttaswamy case.

Akshat Jain is a student of the National Law University, Delhi, and an intern with ThePrint

(Edited by Zinnia Ray Chaudhuri)


Also read: Roe v Wade saga shows India must reform health data policy. Protection, privacy not same


 

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