Data generated in the digital age has soared and will keep rising. If it becomes outdated, or has a negative impact on an individual's reputation, one may want data to be removed or erased, which is where the 'right to be forgotten' comes into play as a subset of the 'right to privacy'. The right to be forgotten is a concept that allows people to request that organisations remove and delete specific personal information about them from online platforms and it has both supporters and critics. It was back in the headlines recently with the July 24, 2024, ruling of the Supreme Court of India (SC) staying the Madras High Court's (MHC) order from February 27, 2024, which had directed the removal of references to a petitioner's identity from a 2011 judgement posted on Indian Kanoon, a widely-used legal search platform. The case centres on the petitioner's right to privacy and the right to be forgotten, invoking Article 21 of the Indian Constitution, which guarantees the Fundamental Right to Life and Personal Liberty. Fundamental Rights are one of the most significant features of the Indian Constitution and emanate from basic notions of liberty and dignity.
Background and Plea for Removal
The petitioner, who had faced criminal proceedings but been acquitted on all charges, was aggrieved by the refusal of the Registrar General and Indian Kanoon to redact his name and identity from a 2011 judgement uploaded on the website of Indian Kanoon, which was publicly available for download. The order revealed the petitioner's identity, and his plea was based on his entitlement to privacy - a fundamental right under Article 21 per the SC ruling in Justice K.S. Puttaswamy vs Union of India. The petitioner claimed that his personal details in the judicial proceedings were no longer relevant, and had had negative consequences on his life, such as a denied visa application to Australia. He had previously appealed to a lower court, requesting the removal of personal information. After the lower court rejected this request, the petitioner approached the MHC (Karthick Theodore v. The Registrar General and Others (W.A.(MD)No.1901 of 2021).
High Court's Observations
The MHC acknowledged that the petitioner was not seeking statutory protection but rather discretionary relief. In its observations, the MHC addressed the petitioner's request, framing it as an exercise of the 'right to be forgotten,' or more aptly, the 'right to be remembered well,' noting that such a right should not be denied if justified by the circumstances.
The court referenced Section 12(3) of the forthcoming Digital Personal Data Protection Act, 2023 (DPDPA), which permits the erasure of personal data unless a specific legal purpose mandates the retention of such data. The MHC emphasised that while high courts function as courts of record, tasked with preserving documents in their original form, protecting an individual's privacy does not compromise the integrity of judicial records. Referencing the K.S. Puttaswamy ruling, the court held that the right to privacy is an inalienable right, which also includes the 'right to be forgotten'. It argued that moderating the public display of records, such as through platforms like Indian Kanoon, would not affect the sanctity of the original legal documents. Indian Kanoon was directed to take down the judgement entirely, while the other respondents were directed to redact the name and other details of the petitioner from the judgement in question.
Supreme Court's Stay
An appeal filed by Indian Kanoon (Ikanoon Software Development Pvt. Ltd v. Karthick Theodore & Ors. SLP(C) No. 15311/2024) contested the MHC's decision. A SC bench comprising then Chief Justice of India DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Mishra issued a stay on the Madras High Court's directive. In the days ahead, the apex court will now deliberate on whether the 'right to be forgotten' extends to the removal of court judgments from public domains.
Legal and Constitutional Considerations
This case raises pivotal questions about the intersection of privacy rights and the public's right to information highlighting the competing interests of transparency, public record-keeping, and privacy protection, particularly in a digital world.
It is not the first time an issue of this nature has arisen for judicial consideration. For instance, in R. Rajagopal v. State of Tamil Nadu (1994) the SC held that the Tamil magazine Nakkheeran did not require consent to publish the life story of serial killer Auto Shankar, insofar as it was based on public records. However, if it went beyond such records, it might be 'invading his right to privacy'. More recently, in a 2022 judgement, the top court found substance in the plea moved by an estranged wife that the availability of names, address and other personal information on the web violated her right to be forgotten, which had been acknowledged as a facet of the right to privacy in the landmark K.S. Puttaswamy judgement. The SC thus asked its Registry to work out a mechanism so that details of a couple embroiled in a bitter marital discord could be removed from search engines and the Internet. Notably, in crimes involving sexual offences, it is de rigeuer to redact names of victims.
The SC stay signifies the court's intent to thoroughly examine the legal and constitutional implications of removing or altering publicly accessible court records. The final decision will likely set a precedent for how the 'right to be forgotten' is applied in the context of legal documents and public records in India. Lending vital amplification of the right to privacy, the decision could have far-reaching implications.
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