The legal notion of the right to be forgotten is evolving in India and it falls under the category of the right to privacy. Recent events and court submissions have sparked a long-overdue conversation on the subject
“But each day brings its petty dust, our soon-chok’d souls to fill. And we forget because we must, and not because we will. These lines were written way back in 1852 by Matthew Arnold in his famous poem ‘Absence’. Forgetting is part of the human psyche. The declaration of privacy as a fundamental right by the nine-judge Constitution bench of the Supreme Court in the case of K. S. Puttuswamy v. Union of India was the onset of privacy jurisprudence in India which is still evolving. The court at that time had said, “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”.
The right to be forgotten is not a novel concept in Europe. In Switzerland, courts had repeatedly extended the right to be forgotten to those sentenced for criminal offences, as a part of what the Swiss call ‘rights of the personality’ under the Swiss Civil Code. Over time, an offender’s interest in being forgotten and society’s interest in rehabilitation take precedence.
Recently, a submission of the Central Government in the Delhi High Court suggested that the legal notion of the right to be forgotten is evolving in India and it falls under the category of the right to privacy. A petition was filed by two international businessmen seeking an order of right to be forgotten, as well as the removal of a judgement and a news article related to their arrest in a conspiracy and forgery case in 2002. This was met with a response from the Ministry of Electronics and Information Technology in the High Court, wherein it submitted that, “It is for the platforms to consider the requests of the petitioner and remove such judgments or orders. The Ministry neither plays a significant role nor its presence is required in the matter. The petitioner seeks removal of court order-related information available online. This Hon’ble Court may directly issue directions if any to the concerned respondents other than Union.”
Nonetheless, the sensitivity of the personal data and information cannot be established directly by the individual concerned; rather, the Data Protection Authority will monitor this (DPA). This implies that, while the proposed bill contains provisions allowing a data principal to request the deletion of his or her data, such requests are subject to authorization by the DPA’s Adjudicating Officer. While evaluating the data principal’s request, this officer will need to consider the sensitivity of the personal data, the scope of disclosure, the degree of access requested to be restricted, the data principal’s role in public life, and the type of the disclosure. This bill has not seen the light of the day and it remains pending in Parliament.
The verdict of the Court of Justice of the European Union in Google Inc. v. González was a progression from earlier view on right to be forgotten and its connection with right to privacy. In 2011, Mr. González filed a complaint with the Spanish Data Protection Agency against La Vanguardia Ediciones, the publisher of a daily newspaper with a large circulation in Spain, alleging that a Google search for his name returned links to two pages of La Vanguardia’s newspaper from January and March 1998. Those 13-year-old papers related to a real estate auction to recoup González’s social security debts. He requested the Agency for an order compelling the newspaper publisher to remove or amend the disputed pages, as well as an order compelling Google Spain or Google Inc. to delete or conceal personal data belonging to him from search results.
The court stated that search engines exacerbate the invasion of a person’s privacy by making the material “ubiquitous”. The potentially severe interferences with an individual’s rights were not justified only on the basis of the search engine operator’s “economic interest”. Most significantly, the court found that even processing accurate data that is legal at the time may become incompatible with the law with time. This will be the case if the data are “inadequate, irrelevant, or excessive in regard to the processing purposes… not kept up to date, or… retained for longer than necessary” in light of the purposes for which they were gathered or processed. The most engrossing finding of the court which has been followed closely is that privacy rights entrenched in the European Charter should generally take precedence over not just the economic interests of the search engine’s operator, but also, on occasion, the public interest.
Notably, some Indian courts have also applied this principle in their judgement(s). The High Court of Orissa in the case of Subhranshu Rout v. State of Odisha, provided an in-depth assessment of an individual’s right to be forgotten in any context. In the relevant case, the High Court was deciding a bail application, where the petitioner, who was indicted in the FIR, had released certain unpleasant photos of the complainant on Facebook against her permission. The Court expressed concern that, while the Act provides for criminal penalties for such offences, the rights of the victim, particularly her right to privacy, which is inextricably related to her right to have those offending images erased, have been left unanswered. The High Court relying on the dictum of the EU Court held that the petitioner’s right to privacy had been violated. The court also emphasised the importance of enacting suitable legislation to give remedies in these instances and remarked that adjudicating on practical constraints and technological intricacies is problematic as a result of this void.
The High Court of Delhi again addressed the question of an individual’s right to privacy and right to be forgotten, as well as the general public’s right to transparency of judicial records, in Jorawer Singh Mundy v. Union of India. The petitioner contended that he is an American citizen of Indian ancestry who manages stocks and real estate portfolios, among other things. When he visited India in 2009, he was charged under the Narcotics Drugs and Psychotropic Substances Act. However, the trial court acquitted him of all allegations which was upheld by the Delhi High Court. When the petitioner returned to the United States, he encountered significant obstacles in his professional life as a result of the fact that the High Court’s appeal judgement was publicly available on Google for any prospective employer to view in order to conduct background checks prior to hiring him.
Justice Pratibha M. Singh, relying on the Orissa High Court’s decision in Subhranshu Rout v. State of Odisha, found that the petitioner was prima facie entitled to some interim protection. The Court also discussed the right to be forgotten in light of cases decided in the European Union. The right to be forgotten is incorporated into the General Data Protection Regulation (GDPR), which regulates the collection, processing, and deletion of personal data.
It is interesting to see that there is no precedent on the other side of the Atlantic where right to be forgotten can be wielded as a sword, removing publicly accessible information from the Internet. However, the alluring, almost lyrical, concept of a right to be forgotten has periodically appeared in both US and Canadian law. In 1971, Reader’s Digest published an article about a Mr. Briscoe, documenting his 11-year-old criminal conviction. The California Supreme Court determined that naming individuals in allegations of historical wrongdoing served no purpose: where “a man has reverted to that legitimate and unexciting existence” enjoyed by others, there is no longer a need to “satisfy the public’s curiosity”. However, in Gates v. Discovery Communications Inc., the California Supreme Court reversed Briscoe, finding it incompatible with its own recent rulings addressing the relationship between the right to privacy and the right to free expression and a free press. Briscoe’s early promise was snuffed out, and his revival appears exceedingly improbable.
In Canada, the right to be forgotten may well become part of common law, just like the Ontario Court of Appeal determined in Jones v. Tsige that a common law right of action exists for “intrusion upon seclusion”. Canadian law and legal reasoning sometimes resemble European rather than American patterns of thought. Indeed, the concept of the right to be forgotten existed in Canadian legal thought even before the European court’s judgement. This can be seen in various orders of the privacy commissioner of British Columbia where references to the right to be forgotten is made in support of his judgements.
The concept of privacy and the straightforward right to be forgotten trace back millennia: privacy has doctrinal foundations that date all the way back to the Old Testament. Friedrich Nietzsche famously contended that, “Without forgetting it is quite impossible to live at all”.
González’s name will always be associated with the right to be forgotten, a principle he helped to entrench in law. Google now returns over 40,000 results for his name. Perhaps, when he threw down the gauntlet, he certainly recognised and embraced the irony of his predicament. But more interesting is the fact that this has sparked a long-overdue conversation across the judicial spectrum, one that will undoubtedly continue as we settle remaining debates.