A series of right to be forgotten cases in courts highlight how India doesn’t have a privacy law

Two years ago, X was involved in a criminal complaint filed by his wife and her mother. They resolved their differences later and now live amicably with their minor child. The criminal case against X has been withdrawn. However, the court order pertaining to the criminal case pops up each time X enters his name during an internet search.

X, a bank employee in Dubai, has now filed a writ in the Delhi High Court seeking the right to be forgotten. The petitioner has sought that his name be delinked or removed from Google’s search index so that it does not appear along with “irrelevant and obsolete” and harmful data about him.

The respondents in his petition are the Union government, Google and indiankanoon.org, a search engine for Indian law, which uploaded the legal order. The case is still pending in court.

Right to be forgotten

Going by the spate of recent writs and orders in courts in India, the right to be forgotten seems to be catching on. Originating from another legal term, the right to oblivion (known in French as le droit a l’oubli), a person exercising this right can knock on legal doors to request that their personal data or information be removed from online resources. The right to be forgotten has to do with taking control of one’s personal information online – the right to stub out irrelevant data after a certain period of time and start over afresh.

Made popular by the European Court of Justice in 2014 in the Google Spain vs Mario Costeja Gonzalez case – in which the court ruled that European citizens had the right to request commercial search firms such as Google to take down links to private information that were no longer relevant – the right to be forgotten has emerged as a new legal tool in the internet age and is an “evolving law” in India, say lawyers.

“There is a lot of unfiltered information on the internet which affects a person’s right to privacy, which is read into right to life and liberty under Article 21 of our Constitution,” said Rohit Madan, X’s counsel. Madan added that his client did not seek to destroy court records but sought to delink irrelevant information on him on the internet. Madan added that Google did not respond to their requests to take down the irrelevant information.

Recent cases

Last month, Justice Anand Byrareddy of the Karnataka High Court quietly delivered a landmark judgement in which he ruled that a woman whose name featured in a criminal complaint order filed during a marital dispute had the right to be forgotten.

The woman’s father, the petitioner, argued that an earlier court order, which revealed his daughter’s name in the case title and elsewhere, could lead to friction with her husband with whom she had since reconciled.

The judge directed the court registry to ensure that: “any internet search made in the public domain ought not to reflect the petitioner’s daughter’s name in the cause-title of the order or in the body of the order in the criminal petition”.

Justice Byrareddy, however, affirmed that the woman’s name would not be removed from the order in the High Court website.

Similarly, last month again, Justice Shaji P Chaly of the Kerala High Court passed an interim order asking indiankanoon.org to remove the name and personal information of a rape victim from Kerala High Court judgements regarding her case, which the site had uploaded. The woman wanted the “materials disclosing the identity of the petitioner as a rape victim in websites be removed or hidden appropriately to protect her privacy guaranteed under Article 21 [of the Constitution]”.

‘India needs a privacy law’

These instances of individuals approaching courts to uphold their right to be forgotten highlight how India still does not have a privacy law.

“The current government has just abandoned the idea of a privacy bill,” said AP Shah, former Chief Justice of the Delhi High Court, who had chaired a group on a privacy bill in 2012. “How can they talk of building a modern nation, make us an economic force if we have no privacy or even a data protection law?”

Shah added: “It is frightening the way the government is now asking school children for Aadhaar cards.”

Shah is of the view that abstract constitutional rights like the right to be forgotten cannot help. It is only a privacy bill that can do so, he said. “Most individuals may not be able to go to court,” said Shah. “The right to our personal data should be our legal right. We should be able to write to Google or a data collector to remove any personal data we don’t want online. We cannot do that now because we don’t have a statutory right.”

Thulasi Raj, a lawyer with the Kerala High court, said that Indian courts have always supported the spirit behind the right to be forgotten, and cited two judgements to support her contention. In the first case, State of Punjab vs Gurmit Singh, 1996, the Supreme Court had held that “The anonymity of the victim of the crime must be maintained as far as possible throughout.” In the second case, State of Karnataka vs Putta Raja, 2003, the Supreme Court chose to describe a person who had been subjected to a sexual offence as “victim” in the judgement to protect that person from social ostracism.

Lawyers agree that the right to be forgotten cannot be a blanket right. For instance, a judge should not stub out the name of a criminal convicted for murder in a judgement, as people have the right to know.

Similarly, in Mr ‘X’ vs Hospital ‘Z’, 1999, the Supreme Court, discussing the issue of privacy of medical records, ruled that while medical records are considered to be private, doctors and hospitals could make exceptions in certain cases where the non-disclosure of medical information could endanger the lives of others – in this case the fiancée of a patient with Acquired Immune Deficiency Syndrome, or AIDS. Mr X took the hospital to court for breach of confidentiality of his test reports after his fiancée broke off the engagement after she learned that he had AIDS.

The courts have to tread a fine balance even as the Union government makes no move towards a privacy bill.