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The ‘right to be forgotten’ ruling by the Karnataka High Court has raised a fair amount of questions and debate. Shalini Seetharam takes a closer look at what the ruling’s underlying arguments, and what this means for the future evolution of privacy laws in India.

The recent Karnataka High Court ruling that has recognised a woman’s right to be forgotten has received wide reporting and commentary, and understandably so. The ruling is the first Indian judicial pronouncement that has explicitly referred to the evolving ‘right to be forgotten’ to justify granting the applicant’s request, although in a largely unreasoned order.

The Court had heard through the woman’s father that the woman was concerned that if a previous court order bearing her name were to show up in an internet search, it would have repercussions on her reputation and her marriage. Recognising the right to be forgotten in the Indian context, the Court’s registry was directed to ensure that the woman’s name would not appear in any internet search on the public domain, relying on the new right to be forgotten.

Generally, the right to be forgotten, as practiced presently, allows individuals to request that personal information be removed from the Internet (not show up in search engine searches) and seeks to give individual’s increased control over their personal information stored online.

The judgement has received very dissimilar responses in India. Some are happy about the underlying recognition of an individual’s privacy rights, while others worry that people will abuse this loose adaptation to remove online content. Current apprehension surrounding this right in India is reminiscent of the global debate surrounding the right, which has most commonly centred on the feasibility and enforceability of a right to be forgotten, and the threat it poses to public access to public information.

By its very nature, exercise of the right to be forgotten, also known as the ‘right to erasure’, is premised on striking a balance between privacy and an individual’s control over personal data, and public interest in accessing such data, an admittedly complicated task. While there are benchmarks in jurisdictions that have approved, upheld, and enforced this right that might provide a roadmark on balancing these conflicting rights, there are also serious concerns with how these jurisdictions enforce the right presently.

For instance, the European Union accords its citizens the right to seek rectification, erasure, or blocking of personal data when the same is incomplete, inaccurate, or irrelevant. However, the European Court of Justice’s landmark ruling placed the onus of balancing privacy and access to information rights on search engines.

Many consider allowing internet intermediaries to play an adjudicatory role as a severe threat to internet freedoms. Experts cite risks to freedom of information and freedom of expression.

They worry that improperly defining the right and its framework will result in large-scale censorship of publicly relevant data.

But it is difficult to establish whether the right is envisioned to operate similarly in the Indian context. Can the same benchmarks and concerns apply? For one, India’s privacy jurisprudence is drastically different from other jurisdictions that have recognised this right.

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Second, the Court seems to direct the registry to redact the woman’s name before providing the order externally. However, it retains the woman’s name on the original order displayed on the High Court website. What of external links to this published order that are already present? It is unclear whether the Court seeks to delist such links, or have publications mask the woman’s personal details.

As the Court did not substantiate the order, it is difficult to judge its direction. Did the Court mean to merely anonymise her on information/copy of orders appearing on the internet? Is the right as the order recognises it is the right to erasure or a right to delist? More importantly, the Court did not lay down additional criteria for seeking redaction of personal information from judicial orders. It also did not establish any framework to deal with future requests for takedown of personal data.

Most worryingly, however, the judgement has not highlighted the need to establish this new right in the Indian context.

Regardless, the Court made the ruling with good intentions, and is a definite win for privacy rights in India.

Internet footprints can be unforgiving, and removal of content from the internet is often a technical impossibility. However, the Court’s approach suggests that it will endeavour to recognise and uphold individual privacy rights. This is comforting, especially in a climate where the Union Government has argued that privacy is not a fundamental right. It continues to resist formulating a comprehensive legislation or policy that enumerates collection, use, and retention limitations on personal data.

The opportunity to appraise and demarcate the contours of this right is still there. The Delhi High Court continues to hear a similar case. The applicant seeks removal of online copies of a court order to preserve their right to be forgotten.

If the Delhi High Court reaffirms the right, it can lay down criteria for evaluation framework for takedown. It can also establish safeguards to ensure the right is not abused to threaten freedom of speech on the internet. We need more deliberate decision-making and focussed deliberation on structuring this right. There is scope for upholding an individual’s privacy interests or her control over personal data. At the same time, we can also preserve legitimate public interest in accessing truthful information.

If you have thoughts on changes necessary to improve India’s legal and policy landscape, do get in touch on email.

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