India’s Tryst with The Right to Be Forgotten -Trying to Not Miss the Boat

The judiciary has once again rekindled the urgent need to crystallize the Right to Be Forgotten (RTBF) within our law. This is due to an interim order passed by the Delhi High Court in April. The Court does not go into much detail regarding the contours within which the RTBF has to function. Instead, it highlights some crucial aspects that require examination. The following excerpt reflects this: “Whether a Court order can be removed from online platforms is an issue which requires examination of both the Right to Privacy of the Petitioner on the one hand and the Right to Information of the public and maintenance of transparency in judicial records on the other hand.” Before diving into some of the issues that deserve a space in the jurisprudence of RTBF, a quick review of our legal system’s experience with this right is crucial.

In 2017, before the Gujarat High Court, the Petitioner prayed for an order related to a case in which he was the accused (but was later acquitted) to be taken down from Google. This was a non-reportable order. Without going into the aspect of RTBF, the Gujarat High Court ruled that publishing a non-reportable judgment on a website would not amount to being “reportable.” Therefore, the presence of these articles is not violating any law. In the same year, the Karnataka High Court in passing noted the inclination of Western countries towards upholding RTBF in sensitive cases involving women. The court implemented the same to ensure that the cause titles of sensitive proceedings did not identify the Petitioner’s daughter.

In 2019, the Delhi High Court had the opportunity to further flesh out the contours of RTBF. The Petitioner wanted online articles discussing anonymous harassment complaints against him to be removed. The Court ruled that the Petitioner has the right to ensure that the reports are not published on online platforms to protect his reputation. In 2020, the Orissa High Court noted that many gaps remain in the discourse and enforceability of RTBF. In discussing the PDP Bill and various foreign judgments that have upheld RTBF after thorough consideration, the Court noted that there is a lot left to be desired in terms of India’s understanding of RTBF. The formulation of the PDP Bill has had a checkered past. The Bill recognizes RTBF as a restricted right, i.e., subject to the approval of the appointed Adjudicating Officer. However, to fulfill the spirit of RTBF, the Bill, and any adjudication on this issue, has to dig deeper.

The first issue we need to consider is the practicality of our expectations from online platforms to ensure that the personal data requested to be taken down is indeed taken down. In a 2017 judgment by the Madras High Court, it was noted that service providers such as Google could not claim that they have no control over their content. The Court made this statement in the context of the Blue Whale Challenge, and RTBF was referred to in passing. Foreign courts have noted that search engines have to operate within the framework of their powers and capabilities when expected to take down content to protect personal data. These powers and capabilities have to be understood to come up with sustainable standards for these search engines. It is not enough to direct a search engine to take down the content. The extent (as well as the limitations) of the abilities of various platforms has to be explored as well. We can take inspiration from the Kerala High Court’s attempt to provide safeguards around sharing sensitive COVID data with a US-based entity. It suggested, among others, anonymising the data and informing the citizens about how the data collected would be accessed and used before seeking specific consent.

Importing these in our context with slight variations would mean a) anonymising the data in specific pre-defined contexts, such as anonymising the name of Petitioner/their families in sexual harassment cases at the documenting stage itself and b) as a general practice, informing the parties that the judgments are available in the public sphere in their entirety. For the first solution to work, the legislators will have to incorporate concrete guidelines regarding the extent/manner of anonymisation in the PDP Bill, which in its current version it doesn’t. The “right to de-referencing” can also provide some nuance here. But there are supplementary concerns as well. Is anonymising the data going to be enough to restrict access? Should the PDP Bill envision only taking down digital sources as available to an Internet user? Or, should it go a step further and call for not just restricting the disclosure of this data but for the deletion of the same from all internal systems of the data fiduciary? The Bill currently addressed RTBF to the extent of “restricting disclosure of personal data”. A conversation that we cannot ignore in this context is how AI fits into the picture. When something is deleted from the Internet, it is not truly “deleted” at the source. It is merely stored in a different format that is inaccessible but still available. To put it simply, it will take more than just Google taking down a search result or a legal web search engine deleting a case result for the information to be “forgotten.” We must put in more effort to understand the viability of options to make the deleted personal data “as inaccessible as possible” and whether these options are practical and economical. Only then can robust provisions be made for entities like Google to follow. When we look at personal data mentioned in court documents and judgments, courts have to consider not only RTBF but also the right of the public to know the identity of the person within the background of the case. The current iteration of the Bill notes that the “relevance of the personal data to the public” is a factor for consideration.

Either way, there are some significant issues within this context. Firstly, courts have noted that the realms of RTBF are fluid depending on the offense with respect to which the personal data is requested to be taken down. While offenses related to social security debts have been considered irrelevant to public attention, how does the answer change when we look at more serious crimes? A definite answer to “for which offenses does the public have the right to have ALL the information” can neither be exhaustive nor pre-determined. However, elaborating as precisely as possible the types of offenses that don’t fall within the realm of public importance (and the circumstances in which they fall within the public’s right to know) is an important exercise that has to be undertaken. There appears to be a consensus that if a court has acquitted the person, then there is no need for their personal data to be mentioned in the judgments or other sources referring to the case.

Alternatively, there is merit in the argument that many cases exist wherein, though the accused was acquitted, the nature of the matter is such that we cannot ignore the public interest it generated. Such cases or subject matters (such as sedition, rape, civil rights and unrest) need to be delineated. In this regard, the factors worth considering require elaboration, but more importantly, demand prioritization. For example – In a case involving sexual harassment, is protecting the identity of the acquitted individual more critical than notifying the public that this person was accused (and acquitted) on the given grounds?  In providing an individual the opportunity to exercise their RTBF, it may also prove imperative to consider the timeline of exercising the same. Will the right be available to someone when a court, via an interim order, acquits him or her of an offense, or is it triggered only when a final or a non-appealable order is passed regarding his or her acquittal? Even though the answer might be obvious, the Bill needs to provide clarity regarding this point. If the PDP framework limits the right to non-appealable or final orders, then in that interim period (given the staggered pace of our judiciary, this period can span years), is there any other relief available to the concerned party? The reason why this concern might be worth considering is captured well by the Orissa High Court in its comparison of the act of publicly disseminating any information with removing toothpaste and how neither of these actions can be reversed.

Though there is no statute anchoring the discussion related to RTBF, courts have tried to formulate the contours of RTBF. These efforts are encouraging and commendable. They provide us with the breadcrumbs to finalize a framework for RTBF under the PDP Bill. However, given the contradicting understanding by courts and the interpretational dilemmas that this has led to, it has become crucial to adopt a multi-dimensional perspective to develop a robust framework that fully realizes this right.

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ABOUT THE AUTHOR

Akansha Rukhaiyar is an Associate at Chase Legal, Delhi. She is grateful to Mr. Harsh Kumar (Partner P&A) for his valuable suggestions and inputs in relation to this article. 

Content Picture Credit: Orissapost.com 

Kindly note that the views and opinions expressed are of the author and not of the Indian Journal of Law and Public Policy.