Is India finally recognising “the right to be forgotten?”

Right to be forgotten

In India, for the first time, Karnataka High Court has passed a judgment where it applied and accepted the principle of “Right to be forgotten” which was first recognised by the Court of Justice of the European Union.

To summarise the case, a woman had instituted a civil suit, whereby she sought a declaration that there was no marriage between her and the Defendant, and prayed for annulment of the marriage certificate issued by the Sub-Registrar.  The Parties ultimately entered into a compromise, and the suit was decreed in terms of the compromise petition. According to the conditions of the compromise, the woman was to withdraw all the cases instated by her.

Subsequently, a Petition was instituted by the father of the woman, the Petitioner approached the Karnataka High Court and after discussing the entire background of the case prayed that the name of his daughter be removed from the cause-title  of the aforementioned civil suit instituted by her. The Petitioner stated that the decree passed in the civil suit may reflect in the results of a name-wise search carried out through any of the internet service providers such as Google and Yahoo! and consequently, details of the daughter’s marriage and the cases instituted by her would be available on the public domain. This would, in turn, be detrimental to her marriage, her relationship with her husband and her reputation in the society. The Karnataka High Court, after carefully hearing the facts and Petitioner’s concerns directed that the daughter’s name should not be reflected in the body of the order. Furthermore, the Karnataka High Court directed the Registry to take steps to mask the name  of the Petitioner’s daughter before releasing the order to any such service provider, and also to ensure that any internet search made in the public domain does not reflect the nameof the Petitioner’s daughter in the cause title of the order.

While concluding the judgement, the Karnataka High Court stated “This would be in line with the trend in the western countries where they follow this as a matter of rule “Right to be forgotten” in sensitive cases involving women in general and highly sensitive cases involving rape of affecting the modesty and reputation of the person concerned.

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The Karnataka High Court makes reference to “western countries”, which may be read to mean countries within the jurisdiction of the Court of Justice of the European Union, which passed a ruling in Google v. Spain recognising the “Right to be forgotten” in 2014. In this particular case, a Spanish citizen had lodged a complaint against a Spanish newspaper and Google Inc. wherein the complainant’s main grievance was that an auction notice of his repossessed home appearing in Google’s search results, infringed his privacy rights, more so since the proceedings against him in the matter had been determined years ago. The citizen stated that the said auction notice was completely irrelevant and requested that Google Inc. be directed to remove the personal data relating to him.

The Spanish Court referred this case to the Court of Justice of the European Union. The main question before them was whether an individual has the right to request that his or her personal data be removed from the search engines.

The judgement passed by the Court of Justice on 13th May 2014, recognised the “Right to be forgotten” and inter alia stated that individuals have the right, under certain conditions, to ask search engines to remove links to personal information about them. This applied where the information is inaccurate, inadequate, irrelevant or excessive. However, the Court of Justice specified that the right to be forgotten is not absolute and will always need to be balanced against other fundamental rights, such as the freedom of expression and the media.

Similarly, in French Jurisprudence, “Right to Oblivion” entitles  criminal offenders, who have served their sentence, to have information about their crimes and convictions removed, to provide them a chance to turn their life around.

In India, however, no such right had been recognised by the courts. This judgment passed by the Karnataka High Court is a small step in the right direction, since it acknowledges that when a piece of information could affect a person in a negative way, such a person has the right to get the sensitive information removed. However, only time will tell whether and in what manner the right to be forgotten as recognized by this judgment is upheld and applied by other courts in various other circumstances, arguably, the most important of them being the right to be forgotten on social media.

The right to be forgotten, together with the right to privacy are essential in the age of digitization where information is available at a click of a button, and misleading information could very well have a long lasting effecting on one’s life. The Supreme Court of India has the opportunity in two cases pending before it, i.e. the WhatsApp privacy case case and the Aadhar Card case, to pass judgments to strengthen the right to privacy.

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Is India finally recognising “the right to be forgotten?”

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