Clearing The Slate: Right To Be Forgotten After Acquittal In Digital Age

In an era dominated by digital platforms and the ubiquitous presence of the internet, the concept of the 'right to be forgotten' has emerged as a critical legal and ethical debate. This right, broadly defined as the ability of individuals to control the dissemination of personal information about themselves online, seeks to balance the preservation of privacy with the freedom of expression and public's right to information. In India, the jurisprudence surrounding the 'right to be forgotten' is still in its nascent stages, characterized by evolving interpretations and a lack of clear legislative framework. While the Digital Personal Data Protection Act, 2023^[1] introduced by the Indian legislature does not explicitly mention the 'right to be forgotten', it provides for the "right to correction and erasure" of personal data which could be interpreted to encompass certain aspects of the 'right to be forgotten' depending on the specific circumstances and judicial interpretation.

The Indian judiciary has time and again examined the extent and scope of the right to life and personal liberty enshrined in Article 21 of the Indian Constitution. A key element of the 'right to life' is the 'right to privacy', which was recognized as a fundamental right in the historic judgment of the Supreme Court in K.S. Puttaswamy v. Union of India^[2] ('KS Puttuswamy Case'). This case gave birth to the principle of 'right to privacy' in India and established the legal foundation for a related subcategory: the 'right to be forgotten'.

Origin & Evolution of the Right to be Forgotten:

While this notion of the 'right to be forgotten' has its roots in the French jurisprudence,^[3] it gained significant traction with the landmark decision of the Court of Justice of the European Union ('CJEU') in the case of Google Spain v. AEPD^[4] ('Google Spain Case') The CJEU had held that Google satisfied the requirements of a 'data controller' as the search results are not purely automatic, instead they structure and shape the information. Resultantly, it was observed that Google is not a mere conduit through which the data flows, instead there is a more substantial connection between the algorithm and the data. The CJEU also recognised that when search engines processed personal data, the right to privacy gets attracted because a person's name search alone can reveal a number of details about their private life without search engines needing to piece the information together. The CJEU ruling established that individuals have a right to request the de-listing of search results that contain personal information, particularly if the information is outdated, irrelevant or excessive.

The CJEU ruling in the Google Spain Case had a ripple effect and many jurisdictions around the world have started to recognise the 'right to be forgotten' or at least to consider its implications on the legal system. In India, the KS Puttuswamy Case laid the groundwork for the evolution of the 'right to be forgotten'.

The Right to be Forgotten in India: A Developing Jurisprudence

Following the KS Puttuswamy Case, many High Courts in India have dealt with the concept of 'right to be forgotten'. In 2019, the Delhi High Court had recognised the 'right to be forgotten' in the case of Zulfiqar Ahman Khan^[5] who had filed a suit seeking removal of two articles written against him as a part of the #MeToo campaign. The plaintiff in this case claimed that he underwent enormous torture and personal grief due to the baseless allegations made against him. The Delhi High Court recognising the plaintiff's right to privacy, of which the 'right to be forgotten' and the 'right to be left alone' are inherent aspects, directed the news portals to take down the articles during the pendency of the suit and further barred any republication of the content of the concerned articles during the pendency of the suit.

Right to be Forgotten vis-à-vis Criminal Proceedings

A criminal trial is a harrowing experience, irrespective of whether the accused is convicted or acquitted. Even if acquitted, the accused may continue to suffer prejudicial conduct on account of having been accused of criminal offences. The possibility of such prejudicial conduct is further exacerbated with the increasing ease of access to information provided to everyone through the internet, especially through readily available media reports and court orders. This had led to the discussion around the legal viability to have media report links and court orders concerning a person being removed from search engines upon their acquittal.

In 2021, the Delhi High Court recognised the 'right to be forgotten' of an accused who was acquitted in a criminal proceeding. An American citizen was acquitted by the Trial Court in 2011 and by the Delhi High Court in 2013, in a case under the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS). The American citizen in question was a law student who faced difficulty in securing employment in the United States, despite the acquittal in the proceedings above, because links to the order and media reports concerning the proceedings would show up any time his name was run through a search engine. Consequently, the individual petitioned the Delhi High Court to enforce the 'right to be forgotten' (grounded in the fundamental right to privacy) and sought directives for search engines and other websites, such as Google/Yahoo and Indiankanoon to block/remove links to the orders and media reports concerning the proceedings.

While the proceedings continue to be pending, as an interim measure, the Delhi High Court directed Google/Yahoo (and other search engines) and Indian Kanoon (a popular website to access judgments for free) to block the said judgment of acquittal from their search engines.^[6]

After the interim order was passed in the aforementioned case, various litigants have approached the High Courts in India seeking to enforce the 'right to be forgotten'. This includes some litigants seeking removal of their acquittal related information while others seeking removal of incidents “erroneously committed” in the past.

In the recent judgment of the Delhi High Court in SK v. Union of India, 2023 LiveLaw (Del) 488, directions were issued to the information publication websites to remove the accused's name from their search engines and legal databases. This ruling favoured the redaction of information on the reasoning that continuing to associate the claimant's names with criminal accusations despite their acquittal would harm their reputation and privacy.

Recently, the Delhi High Court passed another order^[7] directing that the Registry should not use the names of the parties involved in the criminal proceedings connected with their matrimonial dispute from the court records. The High Court indicated that these directions are aligned with the concept of 'right to privacy' and 'right to be forgotten' as discussed in the KS Puttuswamy Case. It was observed that after the quashing of the proceedings, no public interest can be said to be served by keeping the information alive on the internet.

However, this presents a fundamental conflict with the right to have access to information, which has been recognized as an inherent part of the fundamental right to freedom of speech and expression enshrined in Article 19(1)(a) of the Constitution. This tussle was highlighted in Karthick Theodre v. Registrar General^[8], wherein the Madras High Court noted that the 'right to be forgotten' “cannot exist in the sphere of administration of justice particularly in the context of judgments delivered by Courts”, as the administration of justice is a task carried out in public interest. The High Court, therefore, rejected the petitioner's plea for redaction of his name from the order passed by the Court. This decision was later overturned by a Division Bench of the same court^[9] leading to further ambiguity and highlighting the need for a consistent legal framework. The matter is now pending adjudication before the Supreme Court in SLP (C) No. 15311/2024, which has stayed the judgment of the Division Bench of the High Court.

Article 19 VERSUS Right to be Forgotten OR Striking the Right Balance

The implementation of the 'right to be forgotten' in India presents several challenges. One of the primary concerns is the potential conflict with the right to freedom of speech and expression, guaranteed under Article 19(1)(a) of the Indian Constitution. Striking a balance between these two fundamental rights requires careful consideration of the context and the potential harm caused by the dissemination of information versus the public interest in accessing such information.

'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. Needless to say that this would not be an absolute right. The existence of such a right does not imply that a criminal can obliterate his past, but that there are variant degrees of mistakes, small and big, and it cannot be said that a person should be profiled to the n^th extent for all and sundry to know.'^[10]

Given the vast reach of the online space post globalization, the difficulty in enforcing the 'right to be forgotten' in the digital realm remains elusive. The complete erasure of personal information from the internet continues to be a challenge considering the risk of data retention and the potential for information to resurface even after deletion. Further, in the absence of a clear legislative framework defining the contours of the 'right to be forgotten' in India, the implementation process has become further complicated. While the judiciary has been tasked with interpreting existing laws and constitutional provisions to address this issue, the lack of uniformity in their approach has not served as an adequate source of guidance.

Way Forward:

The concept of 'right to be forgotten' in the modern era entails answering questions pertaining to the implications on the right to privacy vis-à-vis the freedom of expression. The jurisprudence on this issue is far from developed and continues to be shaped by the judiciary. The Supreme Court's upcoming decision in Karthick Theodore v. Registrar General is anticipated to provide a definitive legal framework for the 'right to be forgotten', balancing individual privacy rights with the principles of open justice and public access to information.

While the Digital Personal Data Protection Act, 2023 provides for the “right to correction and erasure” which could be potentially employed for improving and refining the jurisprudence surrounding the 'right to be forgotten', the lack of its explicit mention has left more room for possible (mis)interpretation.

'Right to be forgotten' may mean different things to different individuals, for some it may mean getting rid of their dark past and for some it may mean re-writing history or even clearing the slate. One can argue that the ability to control the dissemination of personal information available online is empowering, especially when the information available online is false or irrelevant.

The Government needs to set out a comprehensive legal framework that will address the complexities involved in today's digital age around the 'right to be forgotten'. A win for all would be striking the right balance between protecting an individual's privacy rights and preserving the principles of justice for all. As India navigates the complexities of the digital age, the 'right to be forgotten' will undoubtedly play a crucial role in shaping the future of privacy and freedom of expression.