Walking the Tightrope of the Right to be Forgotten: Analysing the Delhi HC’s Recent Order

We’re pleased to bring to you a guest post by Sriya Sridhar, analysing an interim order recently issued by the Delhi High Court discussing the right to be forgotten and directing Google to remove a judgement on the petitioner’s acquittal from their search results and Indian Kanoon to block the judgment from being accessed by search engines. Sriya graduated from Jindal Global Law School in 2020, and is now a lawyer specialising in IP and Technology law.

Walking the Tightrope of the Right to be Forgotten: Analysing the Delhi HC’s Recent Order

Sriya Sridhar

On 12^th April, an interim order was issued by a Single Bench of the Delhi High Court recognising the petitioner’s right to be forgotten (‘RTBF’) as a subset of his fundamental right to privacy. In doing so, the Court has furthered the jurisprudence on the RTBF in India, which has been previously adjudicated upon by various High Courts between 2016 and 2020, albeit unevenly.

The contours of the RTBF are still unclear, in different jurisdictions. In Europe, it takes the form of a right to erasure under the GDPR. However, the judicial interpretations of this right walk a thin line between a right to have one’s information de-linked from a search engine or similar directory, or a broader right to have the source of the information itself deleted completely. Some organisations like the BBC have provided a list of de-linked articles. In the USA, no legal standard exists in legislation, with courts taking differing opinions, primarily disagreeing on whether the erasure of information is a violation of freedom of speech.

The development of jurisprudence in India is important considering the ongoing deliberations on the draft Personal Data Protection Bill, 2019, and the implications for judicial transparency and freedom of speech as previously written about on this blog here, and here.

The state of the law

India’s tryst with the RTBF, vis-à-vis court orders, has been a journey of inconsistency, in the absence of data protection legislation. In 2016, the Kerala High Court passed an interim order requiring IndianKanoon to remove the name of a rape victim published on the website which had published two judgments rendered by the Kerala High Court in writ petitions filed by her. The court recognised the petitioner’s right to privacy and reputation, without explicitly using the term RTBF. In 2017, a petitioner approached the Gujarat High Court for “permanent restraint on public exhibition of judgment and order” on an online repository of judgments and indexing by Google, as he had been acquitted of several offences by the Sessions Court and High Court and the judgment in question was classified as ‘unreportable’. Unlike in Kerala, the Court dismissed the petition on the grounds that the petitioner was not able to point out any provisions in law that posed a threat to his right to life and liberty, and that publication on a website did not amount to ‘reporting’ of a judgment since it is not a law report. Once again, RTBF was not discussed in detail.

The Karnataka High Court then took a turn in the opposite direction, in 2018. The petitioner’s daughter had instituted civil and criminal proceedings against a person, subsequently reaching a compromise and stipulating that the proceedings would be quashed. The petitioner contended that his daughter’s right to privacy would be violated due to her name being present in the cause title. Holding in the petitioner’s favour, the Court directed the registry to mask her name throughout the order, and endeavour to ensure that any internet search of the order does not reveal her name. The reasoning behind this was that this would be in line with the “trend” in Western countries where RTBF is followed as a rule in sensitive cases involving the modesty of women. While this observation is inaccurate even in the context of the RTBF judgments in the EU, this judgment causes even more confusion given that the RTBF was not located in the right to privacy or Article 21 even post the Puttaswamy judgment.

Albeit in a different context from the removal of court orders, the Delhi High Court briefly dealt with RTBF in 2019, holding in favour of a petitioner and preventing republication of articles that were taken down by the original publisher. In doing so, the Court located RTBF and the ‘right to be left alone’ in the right to privacy. Perhaps the most detailed examination of RTBF in any context has come from the Orissa High Court in 2020. The Court discussed the scope of the RTBF by discussing the judgments in Europe. Importantly, the Court recognizes that in the absence of clear legislation, it is difficult to adjudicate on the practical limitations and technological nuances. Given that the case was a bail petition, the Court did not find it appropriate to direct social media platforms to take down the objectionable content identified by the petitioner. However, the Court did recognise that the petitioner’s right to privacy had been violated and emphasised on the need for appropriate legislation to provide redressal in these situations, especially in the context of protecting the modest of women.

The Delhi High Court’s latest order: A prime opportunity for the future of RTBF

With the PDP Bill still in the pipeline, the state of RTBF in India is clearly left in flux with conflicting observations by the judiciary. In the Delhi High Court’s interim order, there is potential to provide some temporary reconciliation until the enacting of concrete legislation on the subject. In this case, the petitioner claimed that he had been acquitted by the Trial Court of charges against him under the NDPS Act, which was then upheld by a Single Judge. When pursuing his studies in the USA, he found that potential employers were unwilling to employ him, as they would come across the judgment when conducting background checks. He contends that he faces hardship due to the judgment being available on Google, and on Indian Kanoon.

Commendably, the Court for the first time, squarely frames the 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.” Framing the issue in this way and locating it within a post-Puttaswamy legal framework, in itself clears up the more foundational issues present in the previous judgments which left the analysis at a mere mention of the RTBF.

In addition, the Court ultimately finds that there is a prima facie case to provide the petitioner with interim protection while the legal issues are pending adjudication. The reasoning is that the petitioner has been caused “irreparable prejudice” in his social and career prospects, despite having been acquitted of the charges that were levelled against him. The Court goes on to order IndianKanoon to block the judgment from being accessed by using search engines such as Google and Yahoo.

Analysis

The Court’s deliberation centers around weighing the right to privacy against the right to information. For the Court, it seems that the fact that the petitioner was ultimately acquitted, weighs heavily in favour of his right to privacy and against the right to information. However, the principle of judicial transparency and maintaining public access to court records weighs against the petitioner’s RTBF and in favour of the right to information. The Court makes it clear that it has not gone into a more detailed adjudication given this is an interim order. However, it finds that the circumstances of the petitioner’s acquittal and effect on his livelihood entitle him to some form of interim protection.

The relief granted here is interesting for several reasons. Firstly, it runs contradictory to the judgment of the Gujarat High Court which held that publishing on a website doesn’t constitute ‘reporting’. Secondly and more importantly, it indicates a balancing act when upholding the RTBF. Access to the judgment is not blocked entirely and would still be visible upon a search query on IndianKanoon’s website. The judgment is only de-linked from search engines, in essence increasing the effort it takes to find it. Similar to the Kerala and Karnataka High Courts which blocked out the name of the petitioner rather than take down the entire judgment, this seems to be a path toward protecting judicial transparency while acknowledging the rights of the petitioner.  It will be interesting to see how the court engages with this balance more in the final order, and whether the Court will limit the RTBF to a context and fact specific analysis until such time as legislation is enacted.

The Court focuses on the 2019 Delhi High Court judgment discussed above, placing emphasis on the observation on the RTBF and ‘right to be left alone’ as inherent aspects of the right to privacy. Interestingly, the Court chooses to highlight in detail this judgment which does not delve too much into RTBF, but very briefly touches upon the Orissa High Court judgment which in fact is far more detailed. I would hope that the Court places more of a focus on this judgment when adjudicating the issues as framed in the final order, given its discussion of foreign judgments and the issues posed by lack of legislation on RTBF.

Similar to the Kerala, Karnataka, and Orissa judgments, it is possible that the Court may recognise that the RTBF is especially important to uphold in sensitive situations, such as those involving offences against women. However, if the interim order is any indication, there seems to be a more granular analysis that the Court is undertaking. In other jurisdictions, courts have considered factors including acquittal, maturity of the petitioner, whether they are a public figure, nature of the offence, accuracy, freedom of expression, and relevance to the public. Courts have also considered whether there is negligible public interest in access to a judgment which ultimately acquitted the petitioners of all charges and where no findings were made. Given the number of varying factors which are highly dependent on facts, there is significant difficulty in drawing bright line rules on disclosure and public interest.

In addition, one could argue that there is a body of cases where a party could have been acquitted in the end but are contentious or important enough that the public should have access to them, involving civil rights, government scams, or any case in the public interest. Perhaps this is why the Court chooses not to block access to the judgment entirely on IndianKanoon, but to de-link it. It is important for the court to elaborate upon the specific circumstance, types of cases, and scope for a determination that an acquittal is a key factor for upholding the petitioner’s RTBF, as I do not believe that there can, or should, be a bright-line rule here.

These questions are important for this Court to consider as well, to avoid a surface level analysis as done in the preceding judgments, given that judicial transparency is at stake. In this respect, it may also be useful for the Court to emphasise on the fundamental conceptual difference between the right to privacy and the RTBF. While the right to privacy can certainly encompass the RTBF, the former essentially deals with information that is not yet in the public domain, and the latter concerns information that was once in the public domain but now must be blocked from third party access.

In addition, de-linking also comes with its own risks, in the absence of legislation which provides adequate grounds. With the counsel for the Ministry of Electronics and Information Technology having undertaken to issue notice to the search engines if the Court were to order a take down, there is a great deal of uncertainty on judicial interventions into de-linking of search results.

For these reasons, I am skeptical about whether this is the appropriate balance to strike in all circumstances, given that the public depends on search engine results almost completely, for all manner of access to public records and to navigate the internet in general. While there may be those who take the extra step to search on the Indian Kanoon website, it definitely cannot be considered equivalent to finding a judgment on the first page of a Google search. In my opinion, this must be looked into carefully, with the demarcation of objective criteria to uphold the petitioner’s RTBF, the extent of appropriate judicial intervention into search algorithms, freedom of expression, and territorial scope. Perhaps, it may be best to adopt a context specific analysis rather than laying down broader principles, until the PDP Bill comes into force. The final order of this case is one to look out for and follow.