Doctrine of ‘Right to be Forgotten’ in Indian Law

Saji Koduvath, Advocate, Kottayam.

Abstract of the Contents.

  • Courts in India apply the doctrine of  ‘Right to be Forgotten’:
    • (i) basing on the foundational principles enshrined in Article 21 of the Constitution (right to life) ,
    • (ii) following the land mark decision, K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (wherein it is held: “Privacy postulates the reservation of a private space for the individual, described as the right to be let alone“) and
    • (iii) under the provisions of Information Technology Rules, 2021.
  • Personal Data Protection Bill, 2019, that upholds the doctrine of  ‘Right to be Forgotten‘, is not passed, though introduced in Parliament in 2019.
  • Now this doctrine is used for removing private information from internet.

Part I

What is ‘Right to be Forgotten

It is human nature to forget things. The right of an individual not to be injured, out of another’s acts of constant recalling-of-past-deeds, is recognized in law – as the doctrine of  “Right to be Forgotten”. 

Now used for removing private information from internet

Now-a-days it is applied to uphold reputation of a person, by removing the private information about him from internet sites and services.

Right to Righteous Life and Reputation

  • Article 21 (right to life) of the Constitution of India reads:

“Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.”

  • Right to righteous life is an inalienable human right.

Shakespeare (Othello: Act II, Scene iii) says through IAGO as under:

  • “Good name in man and woman, dear my lord,
  • Is the immediate jewel of their souls:
  • Who steals my purse steals trash; ’tis something, nothing;
  • ‘Twas mine, ’tis his, and has been slave to thousands:
  • But he that filches from me my good name
  • Robs me of that which not enriches him
  • And makes me poor indeed.”

Shakespeare made it clear – a good name, or reputation, is valuable for its owner. Stealing the reputation of one, does not make another rich. But he who loses reputation, suffers damage.

  • First Statute which recognized ‘right to be forgotten

The European Union systematized the right to be forgotten in a statute, first time, in the year 2018, by ‘General Data Protection Regulation’.    

  • First case where ‘right to be forgotten’ recognized

Google Spain SL v Agencia Española de Protección de Datos (AEPD), ( [2014] QB 1022, may be the first case wherein the ‘right to be forgotten’ was recognized as a legal right. It is sprouted out from ‘right to privacy’.

Part II

Codification of the Law on Reputation in India.

  • Personal Data Protection Bill, 2019.

Personal Data Protection Bill presented in the Indian Parliament by the Ministry of Law and Justice, based on the recommendations of V.N. Sreekrishna Committee, in 2019, legally accepted the ‘right to be forgotten’ as a recognizable right.  Unfortunately, the bill had not been passed by the Parliament, so far. 

  • Information Technology Rules, 2021.

Rule 3(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 directs as under:

  • “(2) Grievance redressal mechanism of intermediary:
  • (a)The intermediary shall prominently publish on its website, mobile based application or both, as the case may be, the name of the Grievance Officer and his contact details as well as mechanism by which a user or a victim may make complaint against violation of the provisions of this rule or any other matters pertaining to the computer resources made available by it, and the Grievance Officer shall –
  • (i) acknowledge the complaint within twenty four hours and dispose off such complaint within a period of fifteen days from the date of its receipt;
  • (ii) receive and acknowledge any order, notice or direction issued by the Appropriate Government, any competent authority or a court of competent jurisdiction.
  • (b) The intermediary shall, within twenty-four hours from the receipt of a complaint made by an individual or any person on his behalf under this sub-rule, in relation to any content which is prima facie in the nature of any material which
    • exposes the private area of such individual,
    • shows such individual in full or partial nudity or
    • shows or depicts such individual in any sexual act or conduct, or
    • is in the nature of impersonation in an electronic form,
    • including artificially morphed images of such individual,
  • take all reasonable and practicable measures to remove or disable access to such content which is hosted, stored, published or transmitted by it:
  • (c) The intermediary shall implement a mechanism for the receipt of complaints under clause (b) of this sub-rule which may enable the individual or person to provide details, as may be necessary, in relation to such content or communication link.”

High Court Decisions in India, on ‘Right to be Forgotten’  

Despite the non-delivery of the proposed Personal Data Protection Bill by the Parliament, various High Courts in India pronounced judgments accepting the doctrine, ‘right to be forgotten’, as an inalienable human right.  It is founded upon Art. 21, ‘Right to Life’, the most valuable fundamental rights in the Constitution of India. 

After the decision on ‘Right to Privacy’ rendered by the Supreme Court of India in J. KS Puttaswami v. Union of India, (2017) 10 SCC 1, various High Courts upheld the rights arising from ‘right to be forgotten’, based on the dogma on ‘Right to Privacy’.

The following are the land-mark decisions on the doctrine of the  ‘right to be forgotten’ (after the verdict in Puttaswami).

  1. Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd.(Delhi HC, 2019)  2019 SCC OnLine Del. 8494.
  2. Sri Vasunathan v. The Registrar General (Karnataka HC) (2020)
  3.  Subhranshu Rout Gugul  v. State of Odisha, 2020 (Orissa HC), 2020 SCC OnLIne Ori. 878.
  4. X  v. YouTube (2021):
  5. Jorawer Singh Mundy v. Union of India & Ors  [Delhi HC, 2021), 2021 SCC OnLine De. 2306.

Prior to the Supreme Court decision in Puttaswami, the Courts in India did not accept the ‘right to be forgotten’ as a right recognizable in the Jurisprudence available in India.  It was on the premises that no enacted law spoke specifically as to such a right.  The said earlier decisions include the following:

  • Naresh Sridhar Mirajkar v State of Maharashtra, AIR 1967 SC 1;
  • Dharamraj Bhanushankar Dave v. State of Gujarat,  2017 SCC OnLine Guj. 2493.     
  • Anchit Chawla v. Google India, 2018

Even after Puttaswami, finding it ‘more appropriate to await‘ till the Parliament opens its eyes or expounds its wisdom, the TN High Court held in Karthick Theodre v. The Registrar General,  2021 SCC OnLine Mad. 2755, as under:

  • “This Court honestly feels that our criminal justice system is yet to reach such standards where courts can venture to pass orders for redaction of name of an accused person on certain objective criteria prescribed by rules or regulations. It will be more appropriate to await the enactment of the Data Protection Act and Rules thereunder, which may provide an objective criterion while dealing with the plea of redaction of names of accused persons who are acquitted from criminal proceedings. If such uniform standards are not followed across the country, the constitutional courts will be riding an unruly horse which will prove to be counterproductive to the existing system.”

Part III

Decisions Upheld, ‘Right to be Forgotten

1. X  v. YouTube (Delhi HC, 2021)

The plaintiff in that case was a well-known actor in TV and Film world of India.  She participated in the creation of Video made mention of in the suit (suit video).  The project was later on dropped.  But the plaintiff found that the producer of the suit video uploaded it in YouTube channel and website.  On the request of the plaintiff the producer removed the videos.  Without plaintiff’s consent the defendants in the suit uploaded the suit videos in various websites.

The plaintiff applied for anonymity and filed the suit against the publication, streaming, or other broadcasting, on the ground that the suit videos infringed her privacy, negatively affected her reputation and it prejudiced her career.  

The contesting defendant (Google) argued the following:

  • they were unaware of the agreement as to the videos;
  • the plaintiff being consented  filming the videos  defendants were not under an obligation to prevent the publication of the videos;
  • the plaintiff had no statutory protection to enforce the ‘right to be forgotten’. 
  • the plaintiff had not required the authorized representative who complied to the Intermediary as provided under Rule 3(2)(b) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
  • S. 67 & 67A of the Information Technology Act, 2000 excluded matters published in the interest of Science, Literature, Art, etc.

The defendants (Google) relied, mainly, on:

  • Karthick Theodre v. Registrar General, 2021 SCC OnLine Mad. 2755
  • Dharamraj Bhanushankar Dave v. State of Gujarat, 2017 SCC OnLine Guj. 2493,
  • Anchit Chawla v. Google India , 2018. 

Finding the suit to be maintainable, the Court held that the suit videos were of the kind that comes in Rule 3(2)(b) of the I.T. Rules, 2021.  The Court pointed out:

  • Even if plaintiff allowed to videograph voluntarily, the suit videos were not agreed to be published or transmitted by the defendants. 
  • She did not license for any of the URLS, Websites or Search engines to publish of transmit the same to YouTube. 
  • The defendants published or circulated the videos ‘for obvious monitory and other prurient benefits’. 
  • Even if the producer would have claimed protection on the consent of the plaintiff, the defendant had ‘no such consent’. 
  • ‘Right to be forgotten’ and the ‘right to be left alone’ are ‘inherent aspects’ of the ‘right to privacy’. 

The claim raised by the plaintiff against the circulation of videos against her will was accepted by the court.

2. Jorawer Singh Mundy v. Union of India & Ors  (Delhi HC, 2021)

The Delhi High Court (Prathiba M. Singh, J.) upheld the doctrine of ‘right to be forgotten’ in this decision. 

The petitioner, an American citizen of Indian origin, travelled in India during 2009.  A criminal case under the NDPS Act, 1985 was lodged against him.  He was acquitted from all the charges.  The appeal filed by the Customs was also dismissed.  After his return to US, the petitioner had to face disadvantages due to the availability of his case on a Google search.  Hence employment to his expectations was denied to him.  The petitioner issued notice to Google India Pvt. Ltd., Google LLC, Indian Canon, etc.  Even after notice the respondents in the case did not remove the judgment.  Hence the petitioner filed the petition to recognize his right to privacy under Art. 21 of the Constitution of India.

The High Court referred the following judgments:

  • K.S. Puttaswami (2017) 10 SCC 1,   
  • Zulfiqar Ahman Khan (supra) and
  • Subhranshu Rout Gugul (supra)

The High Court, by an interim order, directed Google India Pvt. Ltd. and Google LLC to remove the judgment from ‘search results’ sought for by the petitioner; and directed Indian Canon to block the said judgment from being accessed by using search engines such as Google/yahoo etc. 

3. Subhranshu Rout Gugul  v.  State of Gujrat, 2017 SCC OnLine Guj. 2493

The petitioner was charged with various offences including rape of his classmate.  While considering the bail application a question arose as to the recognition of the ‘Right to be forgotten’ in Indian Law since the video recording with the accused was alleged to be used to threaten and blackmail the victim.  The court has to consider the impact of the publication of the videos in Facebook, and in this conduct the recognition of the ‘right to be forgotten in India’ came up.  The court pointed out that the Rout removed the Facebook video it would still remain ‘in the public domain’.  The High Court referred to

  • Sri Vasunathan v. The Registrar General (2017 SCC Online Kar. 424)
  • Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd. (2019 SCC OnLine Del. 8494), 2019(175) DRJ 660. 
  • {Name Redacted}  v. The Registrar General (Karnataka High Court)

It was pointed out that in {Name Redacted}  v. The Registrar General (Karnataka High Court) recognized ‘right to be forgotten’ explicitly, though in a limited sense; and that the petitioner’s request (to remove his daughter’s name, from the judgment, involving claims of marriage and forgery) was upheld.  In that decision it was held that recognizing ‘right to be forgotten’ would parallel initiatives by western countries which upheld this right when sensitive cases concerning the modesty or reputation of people, especially women, were involved. 

The High Court also relied on Puttaswami v. Union of India to uphold the rights claimed in the matter.   

4. Sri Vasunathan v. The Registrar General (Karnataka HC)  

In this case it was observed that the ‘right to be forgotten’ is ‘keeping in line with the Trend in western countries where it is followed as a matter of rule’.

5. Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd., 2019 SCC OnLine Del. 8494.

The suit was filed seeking permanent injunction against a digital/electronic platform (www), its editor and an author who had written 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. The three individuals, who made allegations against the Plaintiff, have remained anonymous and have not revealed their identity in the public domain.

The Defendants, while the matter is being heard submitted the court that they were willing to pull down the said two publications against the plaintiff and that the first article had already been pulled down.

It was pointed out by the Court that if re-publication is permitted to go on continuously, the Plaintiff’s rights would be severely jeopardised. The court observed:

  • “The original publisher having already agreed to pull down the same, this Court having directed that the same ought not to be republished, the Plaintiff, thus, has a right to ensure that the articles are not published on multiple electronic/digital platforms as that would create a permanent atmosphere of suspicion and animosity towards the Plaintiff and also severely prejudice his personal and professional life. The printouts of the articles from certain sites, which have been shown to the Court, leave no doubt in the mind of the Court that these are identical to the articles published on the first defendant’s site, which have already been pulled down.”

Then held as under:

  • “9. Accordingly, recognising the Plaintiff’s Right to privacy, of which
    • the ‘Right to be forgotten’ and
    • the ‘Right to be left alone’ are inherent aspects,
  • it is directed that any republication of the content of the originally impugned articles dated 12th October 2018 and 31st October 2018, 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.
  • 10. The Plaintiff is permitted to communicate this order to any print or electronic platform including various search engines in order to ensure that the articles or any excerpts/search results thereof are not republished in any manner whatsoever. The Plaintiff is permitted to approach the grievance officers of the electronic platforms and portals to ensure immediate compliance of this order.
  • 11. If the said search engines do not take down/remove the objectionable content from their platforms within a period of 36 hours after receiving communication from the Plaintiff with a copy of this order, the Plaintiff is also permitted to communicate with the Defendants so that the Defendants can also cooperate in the said pulling down, if required. If the said platforms do not, after being served by a copy of this order, take down the objectionable content, the Plaintiff is given liberty to approach this court forthwith – apart from approaching the appropriate authorities under the Information Technology Act.”

Part IV

K.S. Puttaswami  v. Union of India and the ‘Right to be Let Alone’

In the celebrated decision on ‘right to privacy’, K.S. Puttaswamy, (2017) 10 SCC 1 , our Supreme Court has held that the ‘right to be let alone‘ is a part of ‘essential nature of privacy‘ of an individual. It is held as under:

  • Essential nature of privacy
  • 297. What, then, does privacy postulate? Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognizing a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy, an individual is not judged by others. Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.
  • 402. “Privacy” is “[t]he condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions” [Black’s Law Dictionary (Bryan Garner Edition) 3783 (2004)] . The right to be in this condition has been described as “the right to be let alone” [ Samuel D. Warren and Louis D. Brandeis, “The Right To Privacy“, 4 Harv L Rev 193 (1890)] . What seems to be essential to privacy is the power to seclude oneself and keep others from intruding it in any way. These intrusions may be physical or visual, and may take any of several forms including peeping over one’s shoulder to eavesdropping directly or through instruments, devices or technological aids.
  • 479. Both the learned Attorney General and Shri Sundaram next argued that the right to privacy is so vague and amorphous a concept that it cannot be held to be a fundamental right. This again need not detain us. Mere absence of a definition which would encompass the many contours of the right to privacy need not deter us from recognising privacy interests when we see them. As this judgment will presently show, these interests are broadly classified into interests pertaining to the physical realm and interests pertaining to the mind. As case law, both in the US and India show, this concept has travelled far from the mere right to be let alone to recognition of a large number of privacy interests, which apart from privacy of one’s home and protection from unreasonable searches and seizures have been extended to protecting an individual’s interests in making vital personal choices such as the right to abort a foetus; rights of same sex couples–including the right to marry; rights as to procreation, contraception, general family relationships, child- bearing, education, data protection, etc. This argument again need not detain us any further and is rejected.
  • 560. The most popular meaning of “right to privacy” is–“the right to be let alone“. In Gobind v. State of M.P. [Gobind v. State of M.P., (1975) 2 SCC 148 : 1975 SCC (Cri) 468] , K.K. Mathew, J. noticed multiple facets of this right (paras 21-25) and then gave a rule of caution while examining the contours of such right on case-to-case basis.
  • 636. Thus, the European Union Regulation of 2016 [Regulation No. (EU) 2016/679 of the European Parliament and of the Council of 27-4-2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive No. 95/46/EC (General Data Protection Regulation).] has recognised what has been termed as “the right to be forgotten“. This does not mean that all aspects of earlier existence are to be obliterated, as some may have a social ramification. If we were to recognise a similar right, it would only mean that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data/information is no longer necessary, relevant, or is incorrect and serves no legitimate interest. Such a right cannot be exercised where the information/data is necessary, for exercising the right of freedom of expression and information, for compliance with legal obligations, for the performance of a task carried out in public interest, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims. Such justifications would be valid in all cases of breach of privacy, including breaches of data privacy.”
  • (Quoted in: Subhranshu Rout Gugul  v. State of Odisha, 2020 (Orissa HC), 2020 SCC OnLIne Ori. 878.)

Read in this Cluster (Click on the Topic):

Book No. 1.   Handbook of a Civil Lawyer

Civil Procedure Code

Power of attorney

Evidence Act – General

Book No. 4: Common Law of TRUSTS in India

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