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THE RIGHT TO BE FORGOTTEN

August 6, 2021

By Lucy Rana and Rima Majumdar

The very idea of privacy has seen been challenged by the widespread use of the internet. Privacy as such is very hard to enforce, as compared to pre-internet and social media times. Accordingly, the debate regarding the right to be forgotten has been raging on for a very long time, and has seen various landmark judgments and legislations in many parts of the world. This variation of the right to privacy, i.e. the right to be forgotten, has recently come up before the Delhi High Court also.

A Single Bench of the Delhi High Court recently heard a Writ Petition wherein the Petitioner had sought for the removal of a judgment from the platforms of Google, Indian Kanoon and vLex.in, in a case wherein he was an accused but was ultimately acquitted.

Jorawer Singh Mundy vs. Union of India & Ors.

In the case titled Jorawer Singh Mundy vs. Union of India & Ors.[1], Justice Pratibha M. Singh, dealt with the issue of one’s Right to Privacy and Right to be Forgotten, and the general public’s Right to transparency of judicial records.

BRIEF FACTS OF THE CASE

The case of the Petitioner is that he is an American citizen of Indian origin, who manages investments, deals with real estate portfolios, etc.

When he travelled to India in 2009, a case under the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985, was lodged against him. However, finally vide judgment dated 30th April, 2011, the trial court had acquitted him of all charges.

Thereafter, an appeal was filed challenging the order of the trial court, and vide judgment dated 29th January, 2013, a Single Judge of the Delhi High Court upheld his acquittal in Crl.A. No. 14/2013 titled Custom v. Jorawar Singh Mundy.

When the Petitioner thereafter went back to his home country, he faced significant hurdles in his professional life due to the fact that the judgment rendered by the High Court on appeal was available on Google for any potential employer to see, who wanted to conduct his background verification before employing him.

Due to the said issue, the Petitioner initially had requested Google India (Respondent No. 2), Google LLC (Respondent No. 3), Indian Kanoon (Respondent No. 4) and vLex.in (Respondent No. 5) to take down the said judgment. However, except for Respondent No. 5, none of the other Respondents acted upon the Petitioner’s request.

Therefore, the present Writ petition was filed, seeking directions to be issued to the Respondents to remove the said judgment from all the Respondents’ respective platforms, recognizing the Right to Privacy of the Petitioner, under Article 21 of the Constitution.

Balance the Right to Privacy of individual with the Right to Information of the public

The legal issue that the Hon’ble Court had to adjudicate in this particular matter was to balance the Right to Privacy of the Petitioner with the Right to Information of the public and maintenance of transparency in judicial records, if a Court order is removed from online platforms.

Relying on an interim order passed by the same Judge in an earlier civil suit tiled Zulfiqar Ahman Khan vs M/S Quintillion Business Media Pvt. Ltd. & Ors., CS(OS) 642/2018, and an order passed by the Orissa High Court in the case of Subhranshu Rout v. State of Odisha, BLAPL No.4592/2020, the Hon’ble Single Bench was of the prima facie view that the Petitioner is entitled to some interim protection, while the legal issues are pending adjudication before the Court.

Accordingly, Google India and Google LLC were directed to remove the judgment dated January 29, 2013 in Crl.A.No. 14/2013 titled Custom v. Jorawar Singh Mundy from their search results. Furthermore, Indian Kanoon was directed to block the said judgement from being accessed by using search engines such as Google/Yahoo etc., till the next date of hearing. The Union of India was directed to ensure compliance of the directions passed by the Court in the said order.

Case laws on Right to be forgotten

Although there have not been many cases decided by courts in India regarding this issue, the precedent appears to be uniform, except for one instance before the Gujarat High Court.

In 2016, in Civil Writ Petition No. 9478 of 2016 the Kerala High Court passed an interim order requiring Indian Kanoon to remove the name of a rape victim which was published on its website along with the two judgments rendered by the Kerala High Court in Writ petitions filed by her. The court recognised the Petitioner’s right to privacy and reputation, without explicitly using the term ‘right to be forgotten’.

Conversely though, in 2017 in the case of Dharamraj Bhanushankar Dave vs State Of Gujara, Special Civil Application No. 1854/2015, the Gujarat High Court dismissed a petition seeking “permanent restraint on public exhibition of judgment and order” on an online repository of judgments and indexing by Google. It was the case of the Petitioner that he had been acquitted of several offences by the Sessions Court and High Court and the judgment in question was classified as ‘unreportable’. The Court dismissed the petition on the grounds that the petitioner was not able to point out any provisions in law that posed a threat to his right to life and liberty, and that publication on a website did not amount to ‘reporting’ of a judgment since it is not a law report.

However, the Delhi High Court in the Zulfiqar case mentioned above, upheld an individual’s right to be forgotten. The Plaintiff in that case approached the Hon’ble Court seeking permanent injunction against the Defendants, who had written two articles against the Plaintiff on the basis of harassment complaints claimed to have been received by them, against the Plaintiff, as part of the #MeToo campaign. Although the Defendants had agreed to take down the news articles, the same had been republished by other websites in the interim. The Court recognising the Plaintiff’s Right to privacy, of which the `Right to be forgotten’ and the `Right to be left alone’ are inherent aspects, and directed that “any republication of the content of the originally impugned articles or any extracts/ or excerpts thereof, as also modified versions thereof, on any print or digital/electronic platform shall stand restrained during the pendency of the present suit.”

Back in 2020, the Orissa High Court in the Subhranshu Rout case, as mentioned above also, gave a detailed examination of one’s right to be forgotten in any context. In the said case, the Hon’ble High Court was deciding a bail application under section 439 of Cr.P.C, wherein the Petitioner, who was the accused in the FIR, had released certain objectionable images of the complainant on Facebook against her will. The Court questioned that although the statute prescribes penal action for the accused for such crimes, the rights of the victim, especially, her right to privacy which is intricately linked to her right to get deleted in so far as those objectionable photos, have been left unresolved.

The Court relied on cases decided in the European Union in order to discuss the issue of right to be forgotten. The aspect of right to be forgotten appears in the General Data Protection Regulation (GDPR) which governs the manner in which personal data can be collected, processed and erased. Recitals 65 and 66 and in Article-17 of the GDPR, vests in the victim a right to erasure of such material after due diligence by the controller expeditiously. In addition to this, Article 5 of the GDPR requires data controllers to take every reasonable step to ensure that data which is inaccurate is “erased or rectified without delay”. Interestingly, the Court commented that it cannot be expected that the victim shall approach the court to get the inaccurate data or information erased every single time, regarding data which is within the control of data controllers such as Facebook or Twitter or any other social media platforms.

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

It may be observed that the above mentioned comment of the Hon’ble Court resonates with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which was notified by the Government of India on February 25, 2021, and also provides for establishment and maintenance of Grievance Redressal Mechanisms by an intermediary operating (or looking to operate in India) mandatory.[2]

Rule 3(2) of the 2021 Rules provides that an intermediary shall appoint a Grievance Officer for handling grievances and complaints raised at least by Indian users (if such a mechanism is not already in place). This would include by prominently displaying the name and contact details of the Grievance Officer on its Website or Mobile Application, and by mentioning the method by which a complainant may be made to them by the aggrieved person.

The said sub-rule further provides that the role of the Grievance Officer is to:

  1. Acknowledge complaints received within 24 hours, and dispose of the same within 15 days;
    1. Acknowledge any order, notice or direction issued by a court or a government agency.

Furthermore, if the content is alleged to be exposing the complainant in a non-consensual manner, then the same has to be taken down within 24 hours of receiving such a complaint.

It also mandates implementing a mechanism for receiving such complaints which may enable the individual or person to provide details, in relation to such content or share the link for the said content.

This mechanism ensures that complaints are redressed expeditiously, especially those that are made by a specific individual alleging proliferation of his/her non-consensual images by a user of the said intermediary.

The Hon’ble Single Judge of the Orissa High Court also referred to the case of Google Spain SL & Anr. vs. Agencia Espanola de Protection de Datos (AEPD) & Anr., C-131/12[2014] QB 1022, wherein the European Court of Justice ruled that “the European citizens have a right to request that commercial search engines, such as Google, that gather personal information for profit should remove links to private information when asked, provided the information is no longer relevant. The Court in that case ruled that the fundamental right to privacy is greater than the economic interest of the commercial firm and, in some circumstances; the same would even override the public interest in access to information.” Read about the case in detail here

Importantly, the Orissa High Court in the Subranshu case recognized that in the absence of clear legislation, it is difficult to adjudicate on the practical limitations and technological nuances. However, the Hon’ble Single Judge mentioned that the Ministry of Law and Justice, on recommendations of Justice B.N. Srikrishna Committee, has included the Right to be forgotten, which refers to the ability of an individual to limit, delink, delete, or correct the disclosure of the personal information on the internet that is misleading, embarrassing, or irrelevant etc. as a statutory right in Personal Data Protection Bill, 2019, which is yet to be notified.

Given that the case was a bail petition, the Court did not find it appropriate to direct social media platforms to take down the objectionable content identified by the petitioner. However, the Court did recognise that the petitioner’s right to privacy had been infringed and stressed on the need for appropriate legislation to provide redressal in these situations, especially in the context of protecting the modesty of women.    

Coming back to the order of the Delhi High Court in the writ petition of Jorawer Singh, it may be pertinent to note that the direction given to Indian Kanoon is not of the nature of blocking access to the judgment entirely. The judgment would still be visible upon a search query on Indian Kanoon’s website, it is only de-linked from search engines, in essence increasing the effort it takes to find it. By doing the same, it ensures that judicial transparency is protected while acknowledging the rights of the Petitioner. After all, if a prospective employer is conducting a background check before hiring, they can hardly be expected to search on websites such as Indian Kanoon. That said, the possibility cannot be ruled out.

It would be interesting to see what the Delhi High Court finally decides on the said matter, and how it ensures a balance between the right to be forgotten and judicial transparency is maintained.

[1] W.P.(C) 3918/2021

[2] https://www.meity.gov.in/content/notification-dated-25th-february-2021-gsr-139e-information-technology-intermediary

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