This article has been published by Chambers and Partners at https://chambers.com/legal-trends/the-right-to-be-forgotten-in-indian-law

“It takes twenty years to build a reputation and five minutes to ruin it” – Warren Buffet

The right to be forgotten, also referred to as the right to erasure, allows individuals to have their personal data removed from the internet and other directories under specific conditions. It is an aspect under the right to privacy, focusing on how individuals can manage and control their personal information online. The interpretation of the right varies across jurisdictions, leading to courts offering variations to their remedies.

In India, the claim to this right draws its enforceability from the right to privacy, which was recognised under Article 21 of the Constitution by a Constitution Bench in K.S.Puttaswamy v. Union Of India (2017) 10 SCC 1. The Supreme Court of India is also set to examine whether the right can be enforced against the judgments by Courts which reveal the identity of the acquitted person given the contradictory judgments of the various High Courts on the said issue vis à vis his right to privacy granted under the Constitution of India.

I. Global Perspectives and Judicial Interpretations of the right to be forgotten

The Court of Justice of the European Union (CJEU) in Google Spain SL v. Agencia Española de Protección de Datos (2014) 3 WLR 659 held that the right to be forgotten should override the economic interests of search engine operators and the freedom to information of internet users. It ordered the search engines to deindex links of secondary sources carrying court documents concerning the claimant’s acquittal. This precedence highlighted the challenges in this right’s enforcement as it merely lowered the accessibility of information regarding the claimant on a general search and the information could be easily accessed by a more targeted search.

The liability imposed by CJEU on search engines was found unsound before the Argentinian Court. In Da Cunha v. Yahoo de Argentina SRL AR/JUR/40066/2020, the Court held search engines to be merely intermediaries and not liable to shoulder the duty of monitoring third-party data.

II. High Court’s tussle of “it is present” or “it is not” with the right to be forgotten

Indian High Courts have differed in their understanding of the right to be forgotten, particularly in relation to whether it is a fundamental right under the broader right to privacy. The High Courts have weighed this right against the principle of transparency and open justice, one’s right to know about the legal history of a third person (prospective employee or partner) and the freedom of expression.

The Delhi High Court in SK v. Union of India 2023 SCC OnLine Del 3544 and Jorawar Singh Mundy v. Union of India 2021 SCC OnLine Del 2306 ordered the information publication sites to remove the accused’s name from the search engine and legal database. The rulings favoured redaction of information on the reasoning that continuing to associate the claimant’s names with criminal accusations despite their acquittal would harm their reputation and privacy.

However, the Kerala High Court in Vysakh K.G. v. Union of India 2022 SCC OnLine Ker 7337, stated that the Right cannot prevail over principles of open justice and larger public interest and declined to overstep judicial boundaries and infringe on the powers of the legislature.

The Gujarat High Court in Dharamraj Bhanushankar Dave v. State of Gujarat and Ors 2015 SCC OnLine Guj 2019, held publishing of any judgment would not be ‘reportable’ as understood in the context of judgments reported by a law reporter and it cannot interfere with the online publication of the judgment against the petitioner.

III. The distinction is drawn between the ‘right to be forgotten’ and ‘redaction of information’ by the Supreme Court

The Indian Courts have allowed the remedy of de-indexing certain links from search engines and the redaction of names and identifiable information. However, the courts have never allowed for culling out of judgements that withhold a stance of law.

In Karthick Theodre vs Registrar General, Madras High Court & Ors 2021 SCC OnLine Mad 2755, the Madras High Court held that the sanctity of an original record cannot be altered except in a manner prescribed by law and refused to allow the claimant’s request for the redaction of information from online published court records.

The Supreme Court stayed this order, Special Leave to Appeal (C) No(s). 15311/2024 vide order dated July 24, 2024, and drew parallels between the right to be forgotten and the redaction of specific information of the claimant. The Court considered the plea to be too “far-fetched” and restricted judicial appreciation to requests of redaction of information or masking of names of the victims and witnesses.

The judgment extends to the redaction of a particular order(s) that the claimant has pleaded against. It does not ensure the redaction of information or removal of criminal records entirely, whereby the acquitted accused name would still be present in the FIR or witness statements recorded at different stages of the trial.

Justice Sri Krishna Committee observed that the right to privacy needs to be analyzed in furtherance of whether the claimant or matter is “related to functions of a public official”. Thus, raising the question of whether the possibility of redemption through availing the Right is also present for such offences.

The decision highlights the ongoing tension between maintaining the integrity and transparency of public records and protecting individual privacy. Therefore, indicating the need for further comprehensive legislative and judicial clarity.

IV. The uncertainty over the existence of the ‘right to be forgotten’ persists

There is some recognition of the ‘right to be forgotten’ under the right to privacy and legislative provisions, the caution taken by the legislation and judiciary sustains it. Section 12 of the Digital Personal Data Protection Act (“Act”) provides for the right to correction and erasure of personal data. The Act (though the provisions are not notified yet) combined with the final judgement of the Supreme Court are set to decide the future of all claims seeking this right.

This raises the question of whether remedies like redacting information or de-indexing secondary sources are truly sufficient to achieve “forgetting,” or if being “forgotten” is even possible once information has entered the vast realm of the internet. Consequently, whether the principles of open justice, the right to expression, or the right to information can ever be outweighed by an individual’s claim to the ‘right to be forgotten’ remains an unresolved issue.