“Right to be Forgotten” is a right to have private information removed from the internet search engine, database, websites or other public platforms. The “Right to be Forgotten” gained prominence sometime in 2014 when a matter was referred to the Court of Justice of European Union in respect of the results for the search of Mario Costeja Gonzalez on the search engine depicting action notice of his reposed home. Since then, “Right to be forgotten” has evolved in many countries with certain countries having specific provisions in this regard. One such most prominent law is the European Union General Data Protection Regulation (EU GDPR) whereby article 17 provides the data subject a right of erasure of personal data concerning her/him.
In India the Digital Personal Data Protection Bill, 2022 under section 14 includes the concept of “Right to be Forgotten” whereby the data principal has the right to correct and erase his / her personal data and a data fiduciary upon receipt of such a request (i) correct, complete or update (as the case may be) the data principal’s personal data or (ii) erase the personal data of a Data Principal that is no longer necessary for the purpose for which it was processed unless retention is necessary for a legal purpose. The said Bill has not yet been passed and accordingly there is no specific law directly on “Right to be forgotten”. However, the provisions of the Information Technology Act, 2000 (“IT Act”) provide for requisite protection. The IT
Act under section 66 provides for punishment inter alia for violation of privacy, publishing or
transmitting obscene material in electronic form, publishing or transmitting material containing sexually explicit act, etc. Further, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”) published on 25th February 2021 casts an obligation upon the intermediaries such as internet service providers and search engines to take all reasonable and practicable steps within 24 hours of receipt of a complaint, to remove or disable access to content which exposes the private area of an individual, shows an individual in full or partial nudity or shows or depicts such individual in any sexual act or conduct.
Accordingly, it can be said that the premise for protecting an individual’s personal data and violation of privacy have been provided under the laws of India. However, lack of specific enactment or provision of law lead to several cases being filed across the country and the “Right to be Forgotten” have been evolved by the Courts and is a work in progress.
- The Hon’ble Supreme Court of India in S. Puttaswamy versus Union of India passed by the nine-judge bench, has inter alia, held that the right to privacy is a fundamental right enshrined under article 21 of the Constitution of India and is protected as an intrinsic part of the right to life and personal liberty. Privacy in its simplest form allows individuals to be left alone.
- In the case before the Hon’ble Delhi High Court, Zulfiqar Ahman Khan versus Quintillion Business Media Ltd. the articles written by the defendants on the basis of harassment
complaints received by them against the Plaintiff in #MeToo campaign were taken down pursuant to the initiation of the proceeding and the Hon’ble Court in an interim order restrained the articles from being re-published on a third-party website. The Plaintiff’s Right to privacy, of which the “Right to be Forgotten” and the “Right to be left alone” are inherent aspects, the Court restrained during the pendency of the proceedings any republication of the said articles or any extracts or excerpts thereof, as also modified versions thereof, on any print or digital/electronic platform.
This is a remarkable way forward on the cases of “Right to be Forgotten” whereby the Court has not only granted interim relief but also further republication of the said articles even with modifications have been restrained.
- In another case, the Plaintiff was convicted by the Trial Court in a criminal proceeding which conviction was overturned by the Hon’ble Madras High Court. The Plaintiff moved the Madras High Court seeking “Right to be Forgotten” and an interim order has been passed directing redaction of the name of the Plaintiff from the judgement passed in the earlier criminal proceedings. In a similar case before the Hon’ble Delhi High Court, where the Plaintiff was acquitted of all charges under the Narcotics Drugs and Psychotropic Substances Act, 1985 however, the availability of the said judgement caused harm to the Accordingly, the Hon’ble Delhi High Court directed removal of the said judgement which were available on the search engines.
- In another case the Hon’ble Delhi High Court has remotely dealt with the issue of consent given by the Plaintiff and the Plaintiff’s “Right to be forgotten”. The Plaintiff was lured into shooting explicit scenes of complete frontal nudity for a web series, which project fell through, and the web series was never produced. However, the said videos were uploaded by the producer on its YouTube channel and website, which were taken down by the producer on the request of the Meanwhile, there were other
websites who uploaded the said videos. The Hon’ble Delhi High Court inter alia, relied upon the KS Puttaswamy (supra), Zulfiqaar Ahman Khan (supra), and Rule 3(2)(b) of the IT Rules (whilst dismissing the argument that the Plaintiff was not a ‘victim’ as the
videos were shot with the consent of the Plaintiff and thus Rule 3(2)(b) of the IT Rules shall not be applicable), held that the Plaintiff is entitled “to be left alone” and “to be forgotten”. The Delhi High Court has categorically stated that the consent was in favor of the producer who has acted on the request of the Plaintiff and taken down the said videos and the Defendants do not have any such consent from the Plaintiff. The Delhi High Court has not only directed that the identity of the Plaintiff, shall at all times, not be disclosed including while uploading orders but also directed to (i) remove/pull down the said videos; (ii) to stop communicating to the public the said videos or part thereof on websites, digital platforms, mobile applications including YouTube channels as well as mirror/redirect/alphanumeric websites; and (iii) take down/ delete the said videos from the search results pages. This order is also in the nature of a John Doe order whereby the Plaintiff is permitted to communicate the order to other electronic/ digital platforms, if found to be streaming the said videos.
The Courts have taken a wholistic approach of ensuring that every possibility of tracking a person, his/her actions, etc., who wants to be forgotten is achieved. This objective seems to have been achieved when directions such as, complete confidentiality of the identity of the person approaching the Court even during uploading order passed by the Court, take down of content, removal of content from search engines, etc. have been passed by the Courts, thereby suggesting implementation of the “Right to be forgotten” in letter and spirit.
The Courts while dealing with an issue of “Right to be forgotten” considers and evaluates factors such as the nature of the information which is sought to be taken down and/or removed from the search engines; the impact of availability of such information on the person seeking its removal; public interest in retaining/making such information available to general public, amongst others.
The “Right to be forgotten” has been a welcomed development to further the school of thought that everyone deserves a second chance and should not be judged by their past actions. However, at some stage the “Right to be forgotten” will need to be tested with the right of freedom of speech and expression and both these rights will need to be balanced. Another interesting aspect appears to be a conflict between the “Right to be forgotten” and the “Right to Information” available under the Right to Information Act, 2005 (“RTI Act”) whereby an Indian citizen can access information under the control of the public authorities. One will have to wait and watch if these concerns get addressed by the Courts or the Personal Data Protection Act (once passed) will take care of these concerns.
Footnotes and References
 Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos, Mario Costeja González, ILEC 060 (CJEU 2014)
 Article 17 of EU GDPR – “The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay”
 (2017) 10 SCC 1
 2019 SCC Online Del 8494
 WP (MD) No. 12015 of 2021
 Jorawer Singh Mundy versus Union of India and Ors. – WP (C) 3918 of 2021 & CM Appl. 11767 of 2021
 CS(OS) 392 of 2021