By Vikrant Rana, Anuradha Gandhi and Rachita Thakur
Introduction
A petition (hereinafter referred to as the “Petition”) was filed in the Bombay High Court by a man (hereinafter referred to as the “Petitioner”) urging the Hon’ble court to mask his name from online court orders to safeguard his privacy and protect his future marriage prospects. Basing his contentions on the fact that online availability of court orders from a rent dispute, negatively impacts his marriage prospects and infringes his right to privacy, he claimed the right to be forgotten.[1]
Right to privacy emanates from the landmark judgment of the Court in the case of Justice K.S. Puttaswamy (Retd.) v. Union of India. [2] where it was recognized as a fundamental right under Article 21 of the Constitution. Thus, the State is duty bound to put in place a data protection framework to protect citizens from dangers of information technology.
Resultantly, the right to be forgotten is that aspect of right of privacy that refers to the ability of an individual to limit, de-link, delete or correct the disclosure of personal information on the internet that is misleading embarrassing irrelevant or anachronistic. This right installs limitations on the otherwise limitless memory of the digital sphere. Internet today is inundated with information about anything and everything facilitating less memory difficult for a normal human brain to comprehend.
What is the present Petition all about?
The Petitioner approached the Court seeking directions to mask his name from the order copies available online on Google search. The dispute in question originated from a leave and license agreement which was resolved in the favour of the Petitioner. Despite the favourable outcome, the Petitioner approached the court contending that the online presence of his name. The following contentions were made in the Petition:
- The rent dispute appeared while searching online via Google search which affected his marriage prospects
- The search results also affected his credibility
- The incorrect identification of the Petitioner’s mother as his wife further worsened the situation
- While referring to the judgment of the Supreme Court in the case of K.S. Puttaswamy v. Union of India the Petition contends that the court orders should not be accessible via search engines unless expressly designated as reportable by the Court.
Note – The Petition is listed for hearing in two weeks.
The Right to be forgotten – Recognition for the first time
Undoubtedly, with the evolution of the concept of data privacy, right to be forgotten, after finding its base in the General Data Protection Regulations, has marked its way up to the Indian Courts and Legislations. While the Courts have advocated for protecting individuals privacy, the Legislation of Data Protection in India i.e. The Digital Data Protection Act, 2023 also provides the Data Principals with the right to erasure of information. However, the law per say does not elaborate on the principle of right to be forgotten, but with the judiciary has paved the way with the landmark judgment in the case of Justice K.S. Puttaswamy v. Union of India, [3] where the Supreme Court recognized the right to privacy as a fundamental right.
Though in India, the right was recognized with the aforementioned judgment, it was promulgated by the European Court of Justice in the case of Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos (AEPD).[4]
Brief facts of the case
In March 2010, a Spanish national brought a complaint before the Spain’s Data Protection Agency (The Agency) against a newspaper, Google Spain and Google Inc. The complainant requested for the removal of information from 1998 regarding the attachment and garnishment proceedings so that the said information is no longer available through internet search engines. He also requested Google Inc. or its subsidiary, Google Spain, to remove or conceal the data. The complaint was made on the ground that the proceedings were already resolved for several years and therefore they should no longer appear online. The Agency dismissed the complaint against the newspaper on the ground that the publication was legally justified pursuant to a government order. It, however, upheld the complaint against Google, finding that Internet search engines are also subject to data protection laws and must take necessary steps to protect personal information.
The matter reached the European Court of Justice where it was held that the search engine was obliged to remove from the list of results displayed following a search was made on the basis of a person’s name links to web pages. That is to say, the court held that the guarantee the rights of privacy and the protection of personal data , operators of search engines can be required to remove personal information published by third party websites.
The individuals whose personal data is publicly available through internet search engines, may request information in question is no longer be made available for access by general public.
The right to privacy and protection of personal data overrides not only the economic interest of the operator of the search engine but also the interest of the general public in having access to the information containing such individual’s name. However, such right is limited when access to such information is justified by the preponderance of the interest of the general public.[5]
Right to Information v. Right to Privacy
The question here that arises is whether the individuals have the right to make potentially damaging information disappear from public platforms. Since such a right would come in conflict with the principle of fair speech and other right to information.
Right to information gives the citizens the right to access information from the government bodies. The fact that government departments and authorities are custodians of public information, health records, records of personal belongings. If such records are made available subject to RTI, right to privacy of individuals would be at risk. Therefore, the Right to Information Act, 2005, specifically restricts disclosure of personal information i.e. information that has no relationship with any public activity or interest or which would cause unwarranted invasion of an individual’s privacy unless there is a larger public interest involved.[6]
Balancing the rights while upholding privacy
Personal information remains outside the purview of the RTI Act. The Supreme Court in the cases of Canara Bank v. C.S. Shyam,[7] affirmed the position of law and stated that the personal information of an employee of Canara Bank was outside the scope of the RTI Act and that there was no public interest or larger good at stake in the personal information requested.[8]
The protests against the Citizenship Amendment Bill, 2019 (CAA) caused the Uttar Pradesh administration to take unforeseen actions against the protestors who were suspected of vandalism. The administration displayed banners in Lucknow with all of the information on the protestors, including their personal information including photographs, names, and addresses, from whom the administration had lodged a complaint for compensation for public demolition. If the accused did not pay the compensation, the poster demanded property confiscation which was widely broadcasted on television and covered in print. Taking the suo moto cognizance, the Allahabad High Court stated that the State action which though was subject to a public interest litigation, was an improper intrusion into people’s privacy.[9]
Right to privacy not absolute
In this context, two judgments by the Courts of Karnataka and Gujarat restricted the right to be forgotten and right of privacy in cases of judicial documents. In 2017, the Gujarat High Court in the case of Dharamraj Bhanushankar Dave v. State of Gujarat (2017),[10] refused to order removal of judgment from a website which offers free access to Indian court judgments and legal material. In this case, an individual sought removal of judgment in which he was acquitted of various criminal offences, including, murder, kidnapping, the publication of which in public space meant harm to his personal and professional life. The Court held that the judgments formed part of public record and even if there marked as non-reportable, third parties could access them. Further, it was iterated that the individual had not demonstrated any reasons why the website should remove the judgement and thus, dismissed the individual’s request.
Changing contours of right to be forgotten – Coming age of acceptance
In the year 2018, the right to be forgotten was declared as an inherent part of right to privacy under Article 21 of the Indian Constitution which is the Fundamental Right to live with dignity in the landmark case of K.S. Puttuswamy v. Union of India (Supra). It was in this case that Hon’ble Mr. Justice Sanjay Kishan Kaul while delivering his opinion stated, “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”.
The Delhi High Court in 2019 supported the individual’s right to be forgotten who sought for the permanent injunction against the Defendants who had authored two articles against the Plaintiff based on the harassment accusations they claimed to have received, as part of #Metoo campaign, against the Plaintiff. The Court acknowledged the Plaintiff’s right to privacy of which right to be forgotten or right to be left alone is an inherent part and directed any republication of the content of original articles including the modified versions to be held back during the pendency of the suit.[11]
In 2023, a petition was filed seeking directions to remove online publications and articles against the Petitioner who unfortunately got embroiled in the criminal case in relation to an FIR registered under section 384 of the Indian Penal Code, 1860,[12] Section 66A[13] and 67A[14] of the Information Technology Act, 2000. The Court observed that the entire career of the Petitioner who was a young executive is likely to be jeopardized in the continued presence of the impugned articles. Therefore, balancing the right of access to information in general with that of the Petitioner’s well-being, mental health and career prospects and prospects in family and life, the Court directed the removal of impugned articles.[15]
Application of Right to be forgotten on judicial orders
In yet another case in Indian Kanoon Software Development Private Limited v. Karthick Theodre 2024,[16] the Supreme Court deliberated whether the right to be forgotten could be applied to judicial orders which are typically public documents. The particular case before the Supreme Court stemmed from the proceeding initiated by a man who challenged the order rejecting redaction of his name from the judgment acquitting him in a case of sexual assault. The Madras High court held that while the courts are expected to maintain records, it is within their discretion to make such data publicly available. However, the court ordered Indian Kanoon to remove the said judgement that revealed the identity of the said person. The 3 judge bench headed by Hon’ble Mr. chief Justice of India, D.Y. Chandrachud, deliberated on the concerns about the implications of high court’s directive questioning how a publicly accessible document could be mandated to be taken down.
Remarking, “We will have to settle the law,” the bench issued notice staying the order of the Madras High Court.[17] The case is listed for next hearing in September, 2024.
Protecting the identity of victims of sexual offences
In one of the case, State of Punjab v. Gurmeet Singh, [18] the Court ordered that the anonymity of victim of rape should be maintained to protect the victim and her family’s reputation. This was further supported in the case of Sri Vasunathan v. The Registrar-General,[19] where the Karnataka High Court upheld 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 concerned person.[20]
Furthermore, in the case of Nipun Saxena v. Union of India, [21] the Supreme Court issued directions to media, police, Special Courts, as well as Registries of the Courts, directing them to not disclose in any manner, the identities of victims of rape, sexual harassment and victims of offences under the Protection of Children from Sexual Harassment, 2012.[22]
Legislations that restrict publication of details related to sexual offences:
Disclosure of identities of the victims of sexual offences is also prohibited under Section 228 of the Indian Penal Code, 1860. [23]The Prevention of Sexual Harassment of Women at Workplaces (Prevention, Prohibition and Redressal) Act 2013 prohibits publication of the details of cases of sexual harassment and imposes fine for contravention.[24]
Furthermore, such matters of sexual harassment are also kept outside the purview of the Right to Information Act, 2005.
Conclusion
Right to privacy is a right acknowledged and accepted worldwide. An individual’s desire to limit publication of information that is personal has been protected under the law. The data protection regulations across the globe, especially the GDPR and India’s newly enacted Digital Data Protection Act, 2023, entitle the individuals with an edge over their personal information and its availability with the others. Expanding landscape of technology has ensured that easy availability of information in public domain with little to no extent of privacy being allowed. The Supreme Court has proactively undertaken to ‘settle the law’ on right to be forgotten, whatever be the decision, will definitely be the road for future interpretations and decisions.
Vishvendera Singh , Intern at S.S. Rana & Co. has assisted in the research of this article.
[2] 2019 (1) SCC 1
[3] 2019 (1) SCC 1
[4] https://curia.europa.eu/juris/document/document.jsf?docid=152065&doclang=en
[6] Section 8 (1) (j) of the Right to Information Act, 2005
[7] Civil Appeal No. of 2009
[10] C/SCA/1854/2015
[11] https://indiankanoon.org/doc/172009054/
[12] Section 384 of the Indian Penal Code, 1860 – Punishment for extortion
[13] Section 66A of the Information Technology Act, 2000 – Punishment for sending offensive messages through communication service, etc.
[14] Section 67A of the Information Technology Act, 2000 – Punishment for publishing or transmitting of material containing sexually explicit act, etc
[15] https://indiankanoon.org/doc/88758482/
[16] Special Leave Appeal(C) No. (s) 15311/2024
[18] 1996 AIR1393
[19] Writ Petition No. 62038 of 2016
[20] https://nliulawreview.nliu.ac.in/wp-content/uploads/2022/01/Volume-VII-17-33.pdf
[21] W.P. (Civil) No. 565 of 2012
[22] https://ssrana.in/articles/right-to-be-forgotten-supreme-court/
[23] Section 228-A of the Indian Penal Code, 1860.
[24] Section 16 of the Prevention of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
Related Posts
Right To Be Forgotten: Roadies Winner Ashutosh Kaushik Moves Delhi High Court