Doctrine of ‘Right to be Forgotten’ in Indian Law

Saji Koduvath, Advocate, Kottayam.

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’  

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

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.  

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, 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.

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.)

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