Arguing that the Right to be Forgotten gives people control over their digital lives, the petition cited multiple cases filed before courts in India and abroad; even turning to the PDP Bill for legal precedent.
An Indian reality television celebrity has approached the Delhi High Court with a petition invoking his Right to be Forgotten wherein he urged the court to direct relevant persons to remove posts, videos, and articles from nearly a decade ago that allegedly presented him in a bad light. The Delhi HC, while hearing the petition, issued a notice to Google LLC in this regard and in the coming days, notices may be issued to the Indian government, Press Council of India, Press Information Bureau, and Electronic Media Monitoring Centre.
Ashutosh Kaushik, who won the MTV Hero Honda Roadies 5.0 in 2007 and Big Boss Season 2 in 2008, courted controversy in 2009 when he was arrested for drunk driving, and again in 2013, due to a drunken altercation which was caught on camera. Ashutosh in his petition said that the content related to these occurrences were still available on search engines such as Google, “which are irrelevant in the present times and are causing grave injury to the Petitioner’s dignity and reputation…It is in this regard, the petitioner wants to avail the Right to be Forgotten to safeguard the petitioner’s life, liberty, dignity, reputation from further jeopardising”.
Prior steps taken by Kaushik
- August 2020: Kaushik approaches Google LLC with a legal notice urging them to remove around 20 links that give details into his drunk arrests and his 2013 altercation. “The present notice is in relation to erasure all the posts, videos, articles written under the name of my client, which are irrelevant in the present times…,” the notice read. An auto-generated reply was sent to the petitioner.
- February 2021: Kaushik writes to Simmi Chaudhary, the Economic Adviser in the Ministry of Electronics and Information Technology requesting the Indian government’s intervention in the removal of such links. The letter did not evoke any response.
What did the Delhi High Court say?
Justice Rekha Palli while hearing the petition a few days back said that Kaushik seeks to rely on an interim order passed by a Coordinate Bench of the court in March 2021. This particular case, according to LiveLaw, is regarding an American citizen of Indian origin who wanted the Indian Kanoon website to block a court judgement from being accessed through Google or Yahoo. The judge acquitted him from charges under the NDPS Act. Palli was quoted as saying, “This is something you may be right about. Your past should not come out. But we will have to see how far the right can be spread, we have to see larger ramifications.”
LiveLaw said that the Senior Advocate Arvind Nigam accepted the notice for Google Inc and briefly argued that Right to be Forgotten is not yet a law. However, the Delhi High Court order dated July 22, said that one Mamta Jha accepted the notice on behalf of respondent no 5, Google Inc. “Upon the petitioner taking steps, issue notice to the respondents no 1 to 4 through all permissible modes,” the order read. Respondents 1 to 4 are the Union of India, Press Council of India, Press Information Bureau, and Electronic Media Monitoring Centre.
Grounds of the petition: Right to be Forgotten gives people control over their digital lives
PDP Bill has introduced Right to be Forgotten: Kaushik’s petition said that the Justice BN Srikrishna Committee which drafted the Personal Data Protection Bill, 2018 introduced the Right to be Forgotten which refers to the ability of an individual to limit, delink, delete, or correct the disclosure of personal information on the intent that it is misleading, embarrassing, or irrelevant.
Individuals should have a right to control their personal information in the digital age: Arguing that the advent of the internet allowed government and private entities to collect private information about a person, the petition said that government should intervene in cases where “people lose their ability to manage their identity and personal integrity”. In this regard, the petitioner said that the right to be forgotten, empowered people to regain control of their digital lives.
Most personal information available online has no public interest value: The petitioner argued that the vast majority of personal information available online is of limited intrinsic value. However, its accessibility can have “disastrous consequences” on people’s lives, the petition said. “Such information may thwart their employment prospects, hamper their ability to obtain the credit they need, or simply prevent them from living their lives with dignity,” it added.
People should not be indefinitely reminded of their past mistakes: “People have a right to make mistakes without being haunted by them indefinitely,” the petition read adding that the same is already recognised by the law in relation to spent convictions and the same should be true in the digital environment.
“Failure to recognise Right to be Forgotten allows distorted views of individuals to be presented by search engines which list links to juvenile or other errors in top search results for a person’s name. In the case of children, this might impede their development and diminish their sense of self-worth” — Petition in the Ashutosh Kaushik vs Union of India case
It is a form of Right of Reply: The petition said that many countries recognise a right of reply or right of correction against false information published or aired in print or broadcast media. “There is no reason in principle why an equivalent remedy to the right of reply should not exist for search results in order for individuals to contextualise information about themselves,” it read adding that since it was not “technologically feasible” to enable Right of Reply for search engines, the Right to be Forgotten was the next best option.
India is a party to the International Covenant on Civil and Political Rights: The petition said that India is a party to this committee whose Artice 17 stipulates, “There is universal recognition of the fundamental importance and enduring relevance, of the right to privacy and of the need to ensure that it is safeguarded in law and practice. The petition said that India had not filed any reservation to this particular section of the ICCPR and that the former casts an obligation on countries to fulfill its norms. The petition also alluded to the Vishakha vs State of Rajasthan case, wherein the Supreme Court had said that “any International convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of constitutional guarantee”.
What the petition says about Right to be Forgotten: Internet has an unforgiving memory
“That the Right to be Forgotten reflects the claim of an individual to have certain data deleted so that third persons can no longer trace them. The right enables a person to silence the past events of his life that are no longer occurring. Thus, the Right to be Forgotten entitles individuals to have information, videos or photographs about themselves deleted from certain internet records so that search engines cannot find them,” the petition drafted by advocates Akshat Bajpai, Ishanee Sharma and Shreya Gupta (and accessed by MediaNama) read.
The petition argued that the growth of the internet and the increase in the number of internet users have precipitated major socio-cultural changes. It described the internet as having a ‘continual memory’ or ‘an unforgiving memory’. “The advanced technologies and new search algorithms generate information in seconds that was ever uploaded on various platforms and such information can be shared by YouTube, Facebook etc by just clicking on the share button,” the petition read.
Although the Indian Constitution does not recognise The Right to be Forgotten, the petition cited several judgements and observations delivered by Indian courts including the Supreme Court.
Kharak Singh vs State of UP (1964): It held that the Right to Life includes personal liberty and thus, the right to privacy could be culled from Article 21 of the Constitution.
R Rajagopal vs State of Tamil Nadu (1994): The Supreme Court held, “The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a ‘right to be left alone’. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters.”
None can publish anything concerning the above matters without his consent – whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy — R Rajagopal vs State of Tamil Nadu 1994 as quoted in the petition
Kerala HC in Civil Writ Petition No 9478 (2016): This order ruled in favour of the Right to be Forgotten. This petition sought directions of the Kerala HC to ensure the petitioner’s identity be removed from websites such as Indian Kanoon, Yahoo and Google. Indian Kanoon failed to appear before the court and thus, the court directed to remove the name of the petitioner from the website.
Vasunathan vs Registrar General (2016): The petitioner moved the Karnataka High Court seeking directions to remove the petitioner’s daughter’s name from an earlier order passed by the High Court. “His daughter feared the consequences of her name associated with this earlier matter and if a name-wise search was carried on by any person through any of the internet service providers such as Google, and Yahoo this order may reflect in the results of such a search. The Petitioner’s daughter was afraid that this would affect her relationship with her husband and her reputation and goodwill in the society,” the Ashutosh Kaushik petition said while alluding to the Karnataka High Court petition. The PIL quoted Justice Anand Byapreddy’s judgement stating:
“This would be in line with the trend in western countries of the ‘right to be forgotten’ in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned…”
Zulfiqarr Ahman Khan vs Quintillion Business Media Private Limited (2018): In this case, the Delhi High Court recognised the ‘Right to be Forgotten’ and ‘Right to be Left Alone’ were an integral and inherent aspect of the Right to Privacy. This case was an offshoot of the MeToo movement, and the petitioner had filed a harassment complaint against Quintillion Business Media Private Limited on the re-publication of articles against the petitioner.
In an interim order the Delhi High Court had said, “Accordingly, recognizing 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…”
Lakshvir Singh Yadav vs Union of India (2016): This is a case presently under litigation before the Delhi High Court. During a hearing, the Delhi HC had asked the central government and Google whether the right to privacy includes the right to delink irrelevant information from the internet. Another such case is pending in the Kerala High Court (Nikhil S Rajan vs Union of India).
National Legal Services Authority vs Union of India (2014): In this judgement, two Supreme Court judges explained the ambit of Article 21 of the Constitution. These are the key takeaways from their observations
- Article 21 takes into consideration all those aspects of life “which go to make a person’s life meaningful”.
- Article 21 protects the dignity of human life, one’s personal autonomy, right to privacy, and so on
- Right to dignity is an essential part of Right to Life
Supreme Court Advocates on Record Association vs Union of India (2016): Justice Madan B Lokur, in this case, was dealing with the Right to Know of the public on one hand, and the Right to Privacy on the other. Lokur said that the latter was a fundamental right everyone enjoys. He was quoted in the petition as saying: “The balance between transparency and confidentiality is very delicate and if some sensitive information about a particular person is made public, it can have a far-reaching impact on his/her reputation and dignity.”
Kesavananda Bharati vs State of Kerala (1973): The petition cites this landmark judgement which outlined the basic structural doctrines of the Indian Constitution, to drive in the point of Right to Dignity.
Maharashtra University of Health Sciences vs Satchikitsa Prasarak Mandal (2010): While highlighting the dignity aspect of the case, the petitioners cited this case wherein the Supreme Court had held that ‘dignity of an individual is a core constitutional concept’.
NM and Ors vs Smith and Ors (2007): This case pertains to the names of three HIV positive women disclosed in a book. The petitioners in the case had alleged that publishing their names without their prior consent violated their rights to privacy, dignity and psychological integrity.
The court had held, “An implicit part of [the first] aspect of privacy is the right to choose what personal information of ours is released into the public space. The more intimate that information, the more important it is in fostering privacy, dignity and autonomy that an individual makes the primary decision whether to release the information. That decision should not be made by others. This aspect of the right to privacy must be respected by all of us, not only the state.”
KS Puttaswamy and others vs Union of India and others (2017): Kaushik’s petition cites this landmark judgement wherein the Supreme Court declared privacy as a fundamental right. The petition quoted Justice Kaul, in his separate but concurring judgement, as saying:
The impact of the digital age results in information on the internet being permanent. Humans forget, but the Internet does not forget and does not let humans forget. Any endeavour to remove information from the internet does not result in its absolute obliteration. The footprints remain. It is thus, said that in the digital world preservation is the norm and forgetting a struggle and 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. Such a right would not be an absolute right — Justice Kaul in Puttaswamy judgement
Right to be Forgotten: A global scenario
The petition devoted an entire section to analyse the evolution of the concept of the Right to be Forgotten in other jurisdictions from a comparative law perspective.
European Union: Article 17 of the European Union’s General Data Protection Regulation (GDPR) states that a subject of data on the internet has the right to request the erasure of personal data related to them. The Article gives EU citizens the right to get personal data erased under six conditions, including withdrawal of consent to use data, or if data is no longer relevant for the purpose it was collected.
- Google Spain vs AEPD and Mario Costeja Gonazalez (2014): This case involves Mario Costeja González, a Spanish man who was unhappy that searching his name on Google threw up a newspaper article from 1998, Ashutosh Kaushik’s petition said. When he approached the newspaper in 2009, to remove the article, the latter refused to do so, and Gonzalez then approached Google to not display the article when his name is searched. The court ruled in favour of the plaintiff.
The European Court of Justice asked Google to delete “inadequate, irrelevant or no longer relevant” data from its search results, when a member of the public requests so. The ruling is now popularly known as the “right to be forgotten” and has been critical in reinforcing the data protection laws and regulations in the EU, including EU’s General Data Protection Regulation (GDPR).” — From Kaushik’s petition
Argentina: In Da Cunha v. Yahoo de Argentina SRL, the issue of Right to be Forgotten was discussed. The claimant, Virginia da Cunha, is an Argentine model and musician. She claimed damages and sought injunctions against Yahoo Argentina and Google for search results linking her name to several erotic and pornographic websites, which also displayed her photos without permission.
United States of America: In March 2017, the State of New York introduced a bill proposing that individuals be allowed to require search engines and online speakers to remove information that was “accurate, irrelevant, inadequate, or excessive or that is no longer material to current public debate or discourse.”
Australia: The petition said that the Federal Government’s Australian Law Reform Commission (ALRC) recommended a new Australian Privacy Principle, which would allow an individual recourse to a simple mechanism to request destruction / de-identification of personal information provided to an entity by the individual. According to this proposal, the entity would then be required either to comply with the request within a reasonable time or provide the individual with reasons for its non-compliance.
Britain: The petition cited, Equustek Solutions Inc v Morgan Jack and others (2014 BCSC 1063)(“Equustek”), wherein the British Columbia Supreme Court issued an injunction requiring Google to de-list certain websites from its search results. Prior to initiating legal proceedings, the petitioner had previously requested Google’s help in blocking specific URLs. However, the content continued to appear through different domains.
Canada: The petition also cited a Supreme Court of Canada decision which ruled that the Canadian common law courts have the jurisdiction to give global de-indexing orders against search engines like Google.
What does the PDP Bill say about the Right to be Forgotten?
Section 20 of the Personal Data Protection Bill 2019, introduces the Right to be Forgotten. Recently, the Joint Parliamentary Committee on the PDP Bill asked for an extension for the presentation of the committee’s report till the Winter Session. Former chairperson of the committee, Meenakshi Lekhi, who had to vacate her chairpersonship as she was appointed as a minister in the Cabinet reshuffle, said that the report has been submitted to the Lok Sabha speaker. This is what the current version of the PDP Bill plans to introduce in regards to Right to be Forgotten:
A data principal (a person to whom the personal data relates) shall have the right to restrict disclosure of his/her personal data by a data fiduciary (State/company/juristic entity/individual) if —
- The data has served the purpose for which it was collected or is no longer necessary for the purpose
- If the consent to use the data has been withdrawn
- If it was made contrary to the provisions of the Act
However, the bill indicates that the sensitivity of personal data cannot be determined by the person concerned but will be adjudged by the data protection authority (DPA). This inherently means that although the draft bill has provisions to request the removal of content, it will ultimately be subjected to the purview of the Adjudicating Officer who works for the DPA. The DPA will need to assess the following criteria while deciding whether to grant Right to be Forgotten:
- Examine sensitivity of personal data
- Scale of disclosure
- Degree of accessibility sought to be restricted
- Role of the data principal in public life
- Nature of disclosure among other variables
MediaNama received a Right to be Forgotten request in 2014
An Indian user had sent a Right to be Forgotten request in 2014 after MediaNama had written about the individual a few years ago. The individual had told us their plan to appeal to Google on the basis of a judgement by the European Court of Justice and asked us to either convert the public post into a non-indexable post (so that it does not reflect on search engines) or to modify the individuals or any other details so that it cannot be directly linked back to him or her. MediaNama declined the request.
Nikhil Pahwa, the founding editor of MediaNama, had said at the time, “You’re asking us to change how history has been recorded. Done en masse, this would amount to expunging a record from history. It would be disingenuous of us to edit out something that is factually correct, and this is not a precedent we want to set. Today this request comes from someone who, perhaps, deserves that freedom from a mistake (I don’t think it was a mistake) committed so long ago, it’s mostly been forgotten. Tomorrow, it could be someone who deserves to be remembered for something, but doesn’t want to be. ”
- Objectionable images of rape victims on social media: Orissa HC makes a case for the right to be forgotten
- Kerala HC admits ‘right to be forgotten’ plea: Why this may be problematic
- We received a Right to be Forgotten request from an Indian user