Delhi HC Hearing NRI’s Plea For ‘Right To Be Forgotten’

The High Court of Delhi on Thursday issued notice to Centre and Google, demanding their stand on a petition seeking creation of a separate legal framework under ‘right to be forgotten’ to delink ‘irrelevant information’ from the internet.

During the course of the hearing, Google submitted before Justice Sanjeev Sachdeva that even if it disables or blocks a site in its search engine, that webpage will remain on the original website and would be accessible on other search engines.

The Court is hearing a Petition filed by an NRI through Advocates Rohit Madan and Zoheb Hossain, seeking deletion of a Court order, which was reproduced on the website Indiankanoon.com, contending that the same violates the Petitioner’s right to privacy and reputation.

The Petitioner relies on the judgment rendered by the European Court of Justice in the landmark case of Google v. Mario Costeja, wherein Google had been ordered to remove the links related to Mario Costeja on its website, and “right to be forgotten” or “Right to delink” was effectively read into the existing EU data protection law. Right to delink, broadly, provides that an individual may be allowed to control the information available about them on the web, by demanding removal of such information in certain situations.

“Because considering the fact that privacy is a recognized fundamental right in India, and based on the above-mentioned Provisions of Information Technology Act and Rules, it is respectfully submitted by the Petitioner that in a similar situation, Indian courts should also follow the line of thinking followed by the EU Court in the above-referred judgment. Once the Hon'ble Court recognizes this right, Individuals will get the right to seek removal of irrelevant and incorrect personal data from the search results,” the petition thereby contends.

It acknowledges the fact that the order demanded to be removed is “legally tenable and true record”. It however demands that the material be delinked or removed from the search index, so that it may not affect the Petitioner’s “prospective employment opportunities”.

Emphasizing on the intermediary’s roles and responsibilities, the Petition avers, “Because intermediary has the task of ensuring that personal data are processed ‘fairly and lawfully’, that they are 'collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes', that they are 'adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed', that they are 'accurate and, where necessary, kept up to date' and, finally, that they are 'kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed'. In this context, the intermediary must take every reasonable step to ensure that data which do not meet the requirements of that provision are erased or rectified.”

It further contends that even initially lawful processing of accurate data may, in the course of time, “become incompatible with the directive where those data are no longer necessary in the light of the purposes for which they were collected or processed.”

“That is so in particular where they appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed,” it adds.

The petition goes on to rely on Rule 3(2) of the Information Technology (Intermediaries guidelines) Rules, 2011, which mandates observance of due diligence by the intermediary. It further relies on Section 79 of the IT Act, which provides safe harbour provisions for intermediaries in the form of due diligence rules. It demands that the Rules published by virtue of Section 79 should stipulate that the users of computer source should not“host, display, upload, modify, publish, transmit, update or share I any information that is invasive of another's privacy.”

‘Right to be forgotten’ before other Courts

The Karnataka High Court recently accepted, applied and approved the ‘Right to be Forgotten’ in the Indian context. Directing the HC Registry to make sure that an internet search made in the public domain would not reflect the woman’s name in a previous criminal order passed by the same High Court, it observed, “This is in line with the trend in Western countries of ‘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.”You may read the LiveLaw article here.

In another instance, a Petition before Gujarat High Court had demanded that the founders of Indiankanoon.org be directed to take down hosting of a particular High Court’s order from their website so that when the Petitioner’s name is typed on Google, the same link may not pop up. The Court however turned down the plea, observing that publication of a judgment is not in violation of Article 21 of the Constitution of India. You may read the LiveLaw article here.

This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.