Supreme_Court_of_India_-_Retouched

The issue of whether someone should have the “Right to be Forgotten” will be heard in the Delhi High Court on September 19th, 2016 reports The Times of India.

The Right to be Forgotten has been put into practice by the European Union, and was upheld by the Court of Justice of the European Union on 13th May 2014, allowing certain people to ask search engines to remove specific results for queries that include their name, where the interests in those results appearing are outweighed by the person’s privacy rights.

This current case has been filed against the Union of India and others, and the court has asked the  Ministry of Communication and Information Technology, Google Inc., Google India Pvt Ltd and IKanoon Software Development Pvt Ltd to respond. IKanoon Software Development Pvt Ltd is the publisher of Indian Kanoon, a website which publishes court judgments.

Here’s what happened: According to this report, there was a criminal case involving the petitioners wife and mother, which was eventually settled. The petitioner wasn’t a party in the case, but because the details of the proceedings are available online, the case shows up in the results whenever his name is searched. This, he says, affects his employment opportunities. The petitioner had written to IndianKanoon for the order (related to the case being settled) to be removed from its website, and to Google for removing the link to the judgment.

MediaNama’s Take

1. The Internet makes things tricky: The Right to be forgotten is a tricky one, particularly since it challenges existing norms of what is meant to be public information, given how services on the Internet: make it easy to publish and save information; makes information easily searchable; retains backups of information

It is often very difficult to remove a digital trail from the Internet. Content deleted from one place keeps popping up elsewhere, and process of getting information removed is tedious. Thus the solution sought is to make the content not available on search engines: to twist a philosophical phrase around: if you can’t Google it, does it exist online?

2. Court orders are public documents: While it is no ones intention that the petitioner should have to suffer, here’s the problem: the court order is a matter of public record. To remove public information from search (and from a repository like IndianKanoon) is akin to expunging a record from history. The same law must be applicable to everyone: should court orders then not be a matter of public record?

3. Freedom of Expression versus Privacy: The searchability of information online creates an unexpected stress between Privacy and Freedom of Speech. MediaNama readers might recall how we received a Right to be Forgotten notice, asking for someones name to be removed from a report that we had written. We had written then:

“The other, more critical, issue for us is our right as a media entity to report and record history. You’re asking us to change how history has been recorded. Done en masse, this would amount to expunging a record from history. It would be disingenuous of us to edit out something that is factually correct, and this is not a precedent we want to set. Today this request comes from someone who, perhaps, deserves that freedom from a mistake (I don’’t think it was a mistake) committed so long ago, it’s mostly been forgotten. Tomorrow, it could be someone who deserves to be remembered for something, but doesn’t want to be.
“…As far as I understand it, the (European Union) judgment (on the Right to be Forgotten) is applicable to search engines, and not to media publications…”

This, a fine balance has to be struck between the Right to Privacy and the Right to be Forgotten, and in our point of view, it has to be one that ensures that Freedom of Expression isn’t compromised: there are circumstances under which content can be removed from the Internet, and this has to be in compliance with reasonable restrictions on the Freedom of Expression as mentioned in the Constitution of India. This case is tricky because it isn’t incitement and it isn’t defamation, but the order of the Court isn’t also private information: would the High Court also be open to the idea of expunging information from Court records?

4. No Privacy in India? The irony is that this case is being argued when the Government of India is arguing that there isn’t a fundamental Right to Privacy, and the country has no Privacy and data protection law. To quote the Attorney General of India, Mukul Rohatgi, representing the Indian government: “Violation of privacy doesn’t mean anything because privacy is not a guaranteed right”. The draft bill is in a limbo.