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Digitisation of courts brings privacy concerns. But India lacks right to be forgotten

The policy should address how courts deal with privacy concerns. It's important to not wait till PDP Bill is enacted.

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With increasing digitisation, especially of court records, privacy concerns are likely to be at the forefront of judicial and public deliberations in the coming years. In this context, the right to be forgotten, or RTBF as it has come to be more widely known, has become a buzzword. Ever since the decision of the European Court of Justice in the Google Spain case in 2014, there has been a constant debate about the contours of this right and the consequences of recognising it. These consequences can be for the concerned individual, companies like Google, the legal system as well as the public at large.

However, before discussing the various issues pertaining to the RTBF, it is important to understand what it means. Simply put, RTBF is an aspect of the right to privacy that allows individuals to ask for the removal of their personal information from publicly-available sources on certain grounds. In the era of the Fourth Industrial Revolution, where technology is interspersed with every aspect of our lives and a simple Google search can reveal a plethora of personal information about a person, this right has attained greater significance.

India lacks a robust RTBF

While there has been a lot of discussion surrounding the right to be forgotten in Western countries, any nuanced debate regarding the implications of its recognition has been fairly limited in India. In fact, the RTBF mostly becomes a part of the news cycle whenever a court accepts or denies its applicability in India. Since a lot has been written about analysing individual court cases involving the RTBF, this article aims to demystify the developments around it in India and consolidate the learnings from the often-contradictory judgments on this issue coming from various high courts across the country.

In India, two main kinds of cases involving RTBF have come before courts. The first category is what I call “RTBF simpliciter” cases, and the second is the more complicated category where RTBF is sought against judicial decisions. RTBF simpliciter cases usually involve individuals who want certain personal information (which may be prejudicial to them) expunged from the internet and approach the courts to direct search engines and social media platforms to remove such information. For instance, in August this year, the Delhi High Court granted interim relief to a Bengali actress seeking restraint on the publication and streaming of her explicit videos on various online platforms including YouTube.

These cases generally do not give rise to very complex issues, and the need to approach the courts only arises in such cases because of the lack of a data protection law in India. Such cases would fall within the scope of the Personal Data Protection (PDP) Bill, 2019, once it becomes a law. Clause 20 of the Bill includes a right to be forgotten and provides a mechanism to exercise this right. Consequently, most of the grievances raised in cases that fall under this category can be easily remedied when the Bill is eventually passed and brought into force.

Also read: Drone policing during Covid exposes India’s need for data protection law

Judiciary versus people’s privacy?

The issue becomes more complicated when it comes to the second category of RTBF cases that have come before Indian courts. In these cases, the right to be forgotten is sought against judicial decisions. Some of these cases raise important questions such as the right of an accused person who has undergone trial and ultimately been acquitted to seek destruction, erasure, or redaction of their personal information from the public domain.

In April this year, the Delhi High Court passed an interim order granting relief to a person who was acquitted in a narcotics case and was seeking the removal of the judgment of his acquittal from online platforms. However, in a similar case, the Madurai bench of the Madras High Court refused to redact the name of the accused (who had been acquitted in a rape case) from the judgment of his acquittal. The court discussed at length the various concerns that arise when applying RTBF to judicial decisions and held that RTBF cannot exist in the sphere of the administration of justice, particularly in the context of judgments delivered by courts.

Also read: HC seeks Google, Twitter’s reply on man’s plea to remove conviction articles in criminal case

SC needs to work out a new privacy policy

However, the Madras High Court recognised the need for a proper policy to address this issue and the confusion that its absence would lead to. In the court’s words, “If such uniform standards are not followed across the country, the constitutional courts will be riding an unruly horse, which will prove to be counterproductive to the existing system.” The Supreme Court is best-placed to come up with such a privacy policy in consultation with the high courts and the legal fraternity.

This policy should address how the judiciary plans to deal with the privacy concerns that the vast amount of data in its possession give rise to. It is important that the judiciary not wait till the enactment of the PDP Bill for drafting this policy. This is because Clause 36 of the PDP Bill anyway makes RTBF inapplicable to the processing of personal data by any court or tribunal in India that is necessary for the exercise of any judicial function.

While drafting this policy, it is crucial to keep the principle of open courts in mind and the important purpose it serves in keeping the judiciary transparent and accountable. Finally, if the judiciary decides to recognise a person’s right to be forgotten in the context of judicial decisions, whatever mechanism it puts in place should be accessible for people from all sections of society. Any right to privacy of individuals should not have to depend on their privilege, but ensure their access to resources and ability to approach the higher judiciary to get relief. Going forward, it is necessary for the judiciary to adopt a cogent privacy policy for itself.

Apoorva is a Research Fellow with the Justice, Access and Lowering Delays in India (JALDI) Initiative at the Vidhi Centre for Legal Policy. Views are personal.

This article is part of a series of opinion pieces on building a ‘Judiciary for the 21st
Century’ with the Vidhi Centre for Legal Policy, ThePrint’s knowledge partner. Read the series here.

(Edited by Humra Laeeq)

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