The Right to be Forgotten: The good, the bad and the ugly

[Sanskruti Yagnik examines a recent Madras HC order, and recommends a seven-part test for the right to be forgotten, which aims to balance freedom of expression with privacy.  The author wishes to thank Eeshan Sonak, Gayatri Gupta, and the Senior Editorial Board for their helpful inputs.]

Introduction

Recently, the Indian High Courts have been confronted with the maintainability of the right to be forgotten. The Madras High Court in Karthick Theodre v. Registrar General, Madras High Court raised a pertinent question on whether an accused person who on being charged for committing an “offence and having undergone trial and ultimately been acquitted of all charges by a Court of competent jurisdiction, has the right to seek for destruction or erasure or redaction of their personal information from the public domain”. Earlier, the question was also raised before the Delhi High Court in April where the court granted interim protection to an American citizen of Indian origin by directing the platforms Google, Indian Kanoon and vLex.in to block a judgment by the same court concerning the petitioner from their search results. Thus, both these are instances in the recent past in which information, particularly court records, were asked to be removed/ blocked.

The right to be forgotten (“RTBF”) is a broad concept that includes a right to limit the use of certain information of a person(s) for it to not appear in searchers, especially in the present instance of a court case in which a person may be acquitted or declared innocent or has already served his sentence. In the court records cases mentioned above, a qualified right to be de-indexed is being invoked “by which a particular webpage, image or other online resource is removed from the results returned by a search engine when an individual’s name is entered as the search term.” De-indexing does not remove the source content from the internet, but means that the website will not be listed in the search results, making the content more obscure; what the courts are currently directing the webpages to do.

While examining the validity of the ‘right to be de-indexed’ (or forgotten as used by the Indian courts), pertinent questions on an individual’s privacy, life, personal liberty and past have come to the fore. Interestingly, India does not have a statutory law that recognizes the right to be forgotten and thus, its scope has largely been undefined.  However, it is explicitly mentioned in the draft of the Personal Data Protection Bill, 2019. Owing to the lack of jurisprudence on this right in the Indian courts and a developing data protection law, I will be examining the validity of the RTBF both substantively and procedurally. This article examines the Madras High Court’s order and recommends a seven-part test first suggested by an organization called Article 19 for the right to be forgotten, which aims to find a balance between  the right to freedom of expression and privacy. I conclude that the identification and recognition of the RTBF will help the individual’s self-determination in a digitalized age based on a codified set of rules.

Understanding the Right to be Forgotten

While the right to be forgotten (de-indexed) as it is widely recognized, is taking shape in the form of legislations in European countries, the literature on the right is limited globally and in India. Currently, data protection laws are governing the right making it difficult to regulate the right in toto for its restrictive nature.

In India, the Personal Data Protection Bill, 2019 comprehensively elaborates upon the ‘right to be forgotten’. Section 18 mentions that the data principal shall have the right to the correction of inaccurate or misleading personal data, completion of incomplete personal data, updating of personal data that is out-of-date, and erasure of personal data which is no longer necessary for the purpose for which it was processed. Section 20 enables the right to be forgotten within the law, as the data principal shall have the right to restrict or prevent the continuing disclosure of his personal data by a data fiduciary. However, this basically means to de-index information from a website or portal and not completely erase its existence. In simple terms, the information shall still be available online, however, it will be hidden and won’t appear just by a mere name -search. However, until it is not recognized as an act, we would have to rely on the existing jurisprudence for its enforcement. The enforcement would involve a balancing right to be de-indexed with competing rights.  The data protection law doesn’t necessarily elaborate upon when can the right to be forgotten be invoked and how will the data principal adjudicate cases? Whether there is a test or set of questions that the adjudicating officer is referring to? How will a case be differentiated, etc?

Recently, the Central Government told the Delhi High Court that the provisions of the Informational Technology Act do not provide for the removal of court orders passed against a person on account of his right to be forgotten. Further, it submitted that any direction for removal of these court orders has to be directly passed by the High Courts to the intermediaries and the platform on which it is uploaded. Pertinently, in 2017 the RTBF was recognized by the Karnataka High Court in [Name Redacted] v. the Registrar General, and later in the Gujarat High Court in Dharamraj Bhanushankar Dave v. State of Gujarat, that dealt with the RTBF, reputation, self-determination and reputation.

Karthick Theodre v. Registrar General and the seven-part test adopted by Article 19

In the case before the Madras High Court had been acquitted from all the charges, however, whoever typed the name of the petitioner in Google search was able to access the Judgment of the Court. In the entire Judgment, the petitioner is identified as an accused even though he has been ultimately acquitted from all charges. Now, this has caused a serious impact on the reputation of the petitioner in the eyes of the society even though the petitioner can no longer be identified as an accused in the eye of law.

The Madras High Court while examining the right to be forgotten has taken a conservative stance on an individual’s personal liberty and privacy and has relied on the soon-to-be-finalized Data Protection Law. The order recommends a proper policy formulation in this regard by means of specific rules; basic criteria or parameters must be fixed, failing which, such an exercise will lead to utter confusion [para 31]. This, however, leads to a rather timely question on whether the courts should wait for the legislature to enact laws for the protection of an individual’s fundamental right?

There is a gap in research and legislation in India on ISPs infringing upon an individual’s right to liberty, privacy, employment, reputation and de-indexing. To answer this, a seven-part test adopted by Article 19 for balancing the right to freedom of expression and the ‘right to be forgotten’ can be constructive for the Indian courts to examine whether the right applies in a given case:

  1. Whether the information in question is of a private nature;
  2. Whether the applicant had a reasonable expectation of privacy, including the consideration of issues such as prior conduct, consent to publication or prior existence of the information in the public domain;
  3. Whether the information at issue is in the public interest;
  4. Whether the information at issue pertains to a public figure;
  5. Whether the information is part of the public record;
  6. Whether the applicant has demonstrated substantial harm;
  7. How recent the information is and whether it retains public interest value;

It is pertinent to note that the Indian Courts haven’t yet adopted a mechanism to deal with the said right. The proposed test seeks to examine the validity of the right to be de-indexed. The argument for the adoption of the said right is fairly simple – the questions that this seven-part test seeks to answer covers an ambit of understanding the right in itself. Reading the cases by the Indian judiciary, I often came across questions asked by the court that are covered in the seven-part test, however, the courts wouldn’t necessarily cover all of them. For example, the courts would address the issue of information being available on public domain and whether it is part of public record, however, wouldn’t consider whether the issue is in the public interest. More often than not, the courts have not considered looking into right of self-determination, reputation or de-indexing. This raises two significant questions – first, how the courts are determining the RTBF in the first place? Second, amidst the lack of jurisprudence and precedence encircling the determination of the RTBF do the courts need a test to cover the issues that arise with the RTBF? Therefore, in order to ease the process of understanding the right and examining each case individually, the seven -part test is an inclusive beginning to close the gap in examining the right to be de-indexed. The Madras High Court prima facie came to a conclusion that an accused person is entitled to have their name redacted from the judgments or orders that are available in the public domain, which are accessible through search engines. However, the court looks at the ramifications of a generalised order which has opened the doors for a rather timely debate on the threats to privacy and freedom of expression. The court felt that there are certain finer aspects that have to be considered, failing which, it may open up flood gates.

Noting the far from satisfactory position of the Indian Criminal Justice System where courts may acquit a person of a heinous crime due to slipshod investigation, dishonest witnesses and lack of an effective witness protection system, the court felt that passing an order for redaction of name of an accused person wouldn’t be timely. It rather recommended waiting for the legislature to enact the Data Protection Act and Rules.

Although comprehensive in its examination of an individual’s right to be forgotten, the court in my opinion lacks in examining the right in accordance with the seven – part test, and has perhaps failed to uphold the Puttaswamy v. Union of India, tracing Article 21 of the Constitution of India. The concurring opinion of Justice Sanjay Kishan Kaul, identified the right to be forgotten, in physical and virtual spaces such as the internet, under the umbrella of informational privacy. He 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” [para 62]. However, he also noted that this right might not be absolute and does not imply that a criminal can obliterate his past, but there are variant degrees of mistake, big and small. Additionally, Justice Sanjay Kaul’s opinion moderately suggests element 6 of the seven– part test mentioned above.

Balancing the right of Privacy with the freedom of expression

The right to be forgotten represents a positive shift in cyberspace law and policy because it increases an individuals’ control over personal information, and restores the balance between free speech and privacy in the digital world. The Puttaswamy judgement has established privacy in India to be the core of an individual’s autonomy which in fact is responsible for developing an individual’s dignity. Additionally, Article 12 of Universal Declaration of Human Rights, Article 17 of the International Covenant on Civil and Political Rights, Article 7 of the United Nations Charter, and Article 8 of the European Convention on Human Rights, establish strong and broad privacy rights by prohibiting illegal interference with anyone’s private and family life, reputation, and honor. Now, the question that lies ahead of us is the balancing of the right to freedom of expression and the right to be forgotten.

The Madras court order also sheds light on The Juvenile Justice [Care and Protection of Children] Act, 2015 and Rules, enacted protecting the identity of victims, whose names are not reflected in any order passed by the court, sufficiently protecting the privacy of the person. This right has unfortunately not been extended to an accused person, who ultimately is acquitted from all the charges. In spite of an order of acquittal, the name of the accused person gets reflected in the order. This brings a rather pertinent issue of self-determination where the background of a person is assessed by a quick google search, creating the first impression, making or marring the characteristics of a person in the eyes of the society. In my previous article, I have examined the role of the ‘right to be forgotten’ in a workplace where employers are legally allowed to judge prospective hires based on all information available on the internet, and one’s reputation and character are justifiable reasons for denying an offer of employment. 

Individuals’ self-determination and rehabilitation

The 21st Century is in the grips of social media where the background of a person is assessed by a quick google search, creating the first impression, making or marring the characteristics of a person in the eyes of the society. In my previous article, I have examined the role of the ‘right to be forgotten’ in a workplace where employers are legally allowed to judge prospective hires based on all information available on the internet, and one’s reputation and character are justifiable reasons for denying an offer of employment. 

In 1931, the California Court of Appeals in Melvin v. Reid, decided that a homemaker, who had once worked as a prostitute and who had been wrongly accused of murder became a subject of a feature film (The Red Kimono) seven years after her acquittal, based on the facts of her trial. The court although not specifically recognizing the ‘right to be forgotten’ permitted the suit against the filmmaker and noted: “One of the major objectives of society as it is now constituted, and of the administration of our penal system, is the rehabilitation of the fallen and the reformation of the criminal.” It was held that the use of the plaintiff’s name inhibited her right to obtain rehabilitation. Moreover, this also interferes with one’s right to self -determination and breaches the privacy of an individual who is seeking to get rehabilitated back into society.

Conclusion

Currently, Courts in India cannot order the complete destruction of the entire records of an acquitted person. Moving forward, I believe that cases must be examined using the seven-part test framework, and acquitted individuals must be allowed to lead normal and dignified lives. Moreover, In the absence of judicial determination of such questions in the first instance, freedom of expression is likely to suffer. Alternatively, it may be appropriate for an independent adjudicatory body to consider such requests. However, data protection authorities are generally ill-suited to carry out such an assessment due to their inherent institutional bias towards the protection of personal data at the expense of free expression. Lastly, the legislature and the courts must consider pursuing existing remedies, and minimum procedural requirements should be observed.

Sanskruti Yagnik is an interdisciplinary researcher and a final year undergraduate law student at the University of Mumbai. Her research interests include comparative constitutionalism, policy, gender and minority rights and criminal law.

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