RIGHT TO BE FORGOTTEN-

RECOGINTION, LEGISLATION
AND ACCEPTANCE IN
INTERNATIONAL AND
DOMESTIC DOMAIN

Ajay Pal Singh* & Rahil Setia**

“We are all now connected by the Internet, like neurons in a giant brain”
-Stephen Hawking.

ABSTRACT

The right to be forgotten “reflects the claim of an individual to have certain

data deleted so that third persons can no longer trace them.” It has been
defined as “the right to silence on past events in life that are no longer
occurring. Thus, the right to be forgotten entitles individuals to have
information, videos or photographs about themselves deleted from certain
internet records so that search engines cannot find them. The origin of this
right can be traced back to the French jurisprudence on the ‘right to
oblivion’ or Droit à l’oubli. The rationale behind it was to allow offenders
who had served their sentence to object to the publication of information
regarding the same. The Global application and adaption of such a right is
not only controversial but also debatable at the same time, especially due to
the vagueness of current Court judgments and statues. Furthermore, there
is an apparent clash with much cherished right to freedom of expression,
with some calling it as new form of Internet Censorship. At the same time,

* Second year student at Army Institute of Law, Mohali, Punjab. The author can be reached at
ajay.khokhar123@live.com
** Second year student at Army Institute of Law, Mohali, Punjab. The author can be reached
at ajay.khokhar123@live.com

Electronic copy available at: https://ssrn.com/abstract=3442990

38 Nirma University Law Journal: Volume-6, Issue-2, December-2018

its relation with the right to privacy is fraught with ambivalence. The Right
to forgotten nonetheless, will have some major benefits, and will act as a
new lease of life to those affected by instances of petty crimes, victims of
cybercrimes such as those affected by creation of Fake online ID’s in the
sense that their future prospects may finally improve in matters such as
Job Security which the present impugned presence does not allow.

Keywords: Recognition, legislation, domain, privacy, individual.

I. INTRODUCTION

As we march ahead in the 21st century, the number of Internet users has
mushroomed to a staggering magnitude. Oxford Dictionary defines it as “A
global computer network providing a variety of information and
communication facilities, consisting of interconnected networks using
standardized communication protocols.”Thus, the Internet without a doubt
has been the biggest phenomena of this century. Our current “network
society” is a product of the digital revolution and some major socio-cultural
changes.

The Internet is the decisive technology of the Information Age due to which
today we are living in an era of Digital revolution. Internet has played a
significant role in ushering humans from Holocene to Anthropocene. From
2000 to 2009, the number of Internet users globally rose from 394 million to
1.858 billion. In 2014, the world’s Internet users surpassed 3 billion or 43.6
percent of world population. Until early 1990’s internet was largely oblivious
to the common person in Rich Western States, let alone the emerging
markets such as China and India. The ARPANET or the Advanced Research
Projects Agency Network of the United States Department of Defence
considered the precursor to the modern Internet was never thought to be
used on such a scale and level, as Internet is done today.

It is said that the Internet never forgets, it has an unforgiving memory.

Internet does not allow a person to overcome his past follies and turn a new
leaf. A person’s mistake in his personal life becomes and remains in public

Electronic copy available at: https://ssrn.com/abstract=3442990

RIGHT TO BE FORGOTTEN - RECOGINTION, LEGISLATION AND ACCEPTANCE... 39

knowledge for generations to come.1 This aspect provides an ingredient for

litigation and legal disputes across the global domains. As such the emergent
concept of the Right to be forgotten becomes extremely relevant in such a
scenario. The various dimensions of the Right to be forgotten has been dealt
with in this paper.

II. RECOGNITION

The concept of Right to forgotten has evoked mixed responses from various
Jurisdictions across the globe. Most prominently, the developments have
been rapid in the EU and Argentina. Along with these two jurisdictions, the
United States and India have been discussed.

1. The European Union (EU) - The European Union, has witnessed

several manoeuvres to establish the Right to be forgotten in consolidated
form. The Data Protection Directive was a European Union directive adopted
way back in 1995 to regulate the processing of personal data within the
European Union.2 It is an important component of EU privacy and human
rights law. Subsequently The General Data Protection Regulation (GDPR)3
was adopted in April 2016, which superseded the 1995 Data Protection
Directive. Article 17 provides that the data subject has the right to request
erasure of personal data related to them on any one of a number of grounds,
including noncompliance with Article 6(1) (lawfulness) that includes a case
(f) if the legitimate interests of the controller are overridden by the interests
or fundamental rights and freedoms of the data subject, which require
protection of personal data. Thus GDPR’s Article 17 has outlined the
circumstances under which EU citizens can exercise their right to be
forgotten or right to erasure. The Article gives the EU citizens the right to get
personal data erased under six conditions, including withdrawal of consent

1
The Internet Never Forgets, THE QUAD, https://thebestschools.org/magazine/the-all-seeing-
internet/ (last visited Nov 11, 2018).
2
EU Data Protection Directive (Directive 95/46/EC), Whatis.com (Nov 22, 2018 07:30 PM),
https://whatis.techtarget.com/definition/EU-Data-Protection-Directive-Directive-95-46-EC.
3
General Data Protection Regulation 2016/679, Kpmg.com (Nov. 20, 2018 10:12 AM),
https://assets.kpmg.com/content/dam/kpmg/be/pdf/2017/GDPR_Booklet.pdf.

Electronic copy available at: https://ssrn.com/abstract=3442990

40 Nirma University Law Journal: Volume-6, Issue-2, December-2018

to use data, or if data is no longer relevant for the purpose, it was collected.
However, the request may not be entertained in some situations such as if
the request contradicts the right of freedom of expression and information,
or when it goes against public interest in the area of public health, scientific
or historical research or statistical purposes. Thus, the GDPR of 2016
includes a specific protection in the right to be forgotten in Article 17. It can
be said that it has at least provided for a limited right of erasure in its
operating Jurisdiction. In Google Spain v AEPD and Mario Costeja
González 4 the European Court of Justice asked Google to delete “inadequate,
irrelevant or no longer relevant” data from its search results, when a member
of the public requests so. The ruling has now is popularly known as the “right
to be forgotten” and has been critical in reinforcing the data protection laws
and regulations in the EU, including EU’s General Data Protection
Regulation (GDPR). The case involved one Mario Costeja González, a
Spanish man who was unhappy that searching his name on Google threw up
a newspaper article from 1998. When he approached the Newspaper in
2009, to remove the article the latter refused to do so, and Gonzalez then
approached Google to not display up the article when his name is searched.
The court ruled in favour of the plaintiff.5

To exercise the right to be forgotten and request removal from a search

engine, one must complete a form through the search engine’s website.
Google’s removal request process requires the applicant to identify their
country of residence, personal information, a list of the URLs to be removed
along with a short description of each one, and attachment of legal
identification. The form allows people to submit the name they would like
search results removed. If a Search Engine refuses a request to delink
material, the EU citizens can appeal to their local data protection agency. As
of May 2015, the British Data Protection Agency had treated 184 such

4
Google Spain v. AEPD and Mario Costeja González, ECLI: EU: C: 2014:317 (2014).
5
Google Spain v. Agencia Espanola de Protection, number C-131/12. See also, GLOBAL
FREEDOM OF EXPRESSION COLUMBIA UNIVERSITY (Nov. 15, 2018 10:21 PM),
https://globalfreedomofexpression.columbia.edu/cases/google-spain-sl-v-agencia-espanola-de-
proteccion-de-datos-aepd/.

Electronic copy available at: https://ssrn.com/abstract=3442990

RIGHT TO BE FORGOTTEN - RECOGINTION, LEGISLATION AND ACCEPTANCE... 41

complaints, and overturned Google’s decision in about a quarter of those. If

Google objects to a Data Protection Agency decision, it can face legal action.
The European Union has focused that delinking requests by the EU citizens
to be implemented by Google on all the International Domains.

2. Argentina - Excluding EU, another bastion of activity of the present issue

has been Argentina that has witnessed several lawsuits by prominent
individuals against search Engines such as Google and Yahoo! demanding
the removal of certain search results, especially the links to photographs
uploaded online. In Da Cunha v. Yahoo de Argentina SRL and Another,6the
issue of Right to be forgotten was discussed. The claimant, Virginia da
Cunha, is an Argentine model and musician. She claimed damages and
sought injunctions against Yahoo Argentina and Google for search results
linking her name to several erotic and pornographic websites, which also
displayed her photos without permission. In December 2014, the Supreme
Court of Argentina gave judgment in the case stressing the significant role
that search engines play in relation to freedom of expression.7 The Court
ruled “By organizing a vast pool of information, they facilitate access,
diffusion and circulation of ideas and information, which are corollaries to
the freedom of expression.” Internet services are covered by the
Constitutional protection granted to freedom of expression. In the same
judgment, an effort was made to provide for a nuanced and balanced
approach by recognising that both International Law and Municipal Law in
other jurisdictions provide the simultaneous right to privacy along right to
freedom of expression. Thus, a rule that exempted the media of from any to
liability for merely reproducing content created by third parties was evolved.
However to claim an exception some guidelines must be followed by the
media. It must 1) Cite the source 2) The Reproduction must be accurate. The
ruling ultimately ruled that search engines were a part of this category of

6
Da Cunha v. Yahoo de Argentina SRL and Another, File number 99.613/06 (2014)
(Argentina).
7
LitigationDa Cunha v. Yahoo de Argentina SRL and Another, OPEN SOCIETY
FOUNDATIONS (Nov. 15, 2018 10:45 PM), https://www.opensocietyfoundations.org/
litigation/da-cunha-v-yahoo-de-argentina-srl-and-another.

Electronic copy available at: https://ssrn.com/abstract=3442990

42 Nirma University Law Journal: Volume-6, Issue-2, December-2018

media, if they followed above-mentioned guidelines. Section 438 of the

Argentine National Constitution reads that

“Any person shall file this action to obtain information on the data about
himself and their purpose, registered in public records or data bases, or in
private ones intended to supply information; and in case of false data or
discrimination, this action may be filed to request the suppression,
rectification, confidentiality or updating of said data. The secret nature of
the sources of journalistic information shall not be impaired. “

Thus provides for a Right to be forgotten in some magnitude. Argentine

Litigation has attracted global attention particularly as a manifestation of
conflict between privacy and free speech on the Internet.

3. United States - The United States of America has well developed Legal
system that protects the privacy of its citizens. The State of New York became
the first to introduce a draft Right to protection bill A05323 in its State
Assembly, which was titled “An act to amend the civil rights law and the civil
practice law and rules, in relation to creating the right to be forgotten act”.9
Further in March 2017, New York state senator Tony Avella and
assemblyman David Weprin introduced a bill proposing that individuals be
allowed to require search engines and online speakers to remove information
that is “inaccurate”, “irrelevant”, “inadequate”, or “excessive”, that is “no
longer material to current public debate or discourse” and is causing
demonstrable harm to the subject.10 The bill was largely on lines similar to
the European Court of Justice’s decision in Google Spain SL v. Agencia
Española de Protección de Datos. Two important cases namely Melvin v.

8
Constitution of the Argentine Nation, (Nov. 18, 2018 1:37 PM), http://www.biblioteca.
jus.gov.ar/argentina-constitution.pdf.
9
Rebecca Heilweil, How Close Is An American Right-To-Be-Forgotten? Forbes (Nov. 18, 2018
2:43 PM), https://www.forbes.com/sites/rebeccaheilweil1/2018/03/04/how-close-is-an-
american-right-to-be-forgotten/#46d62636626e.
10
Eugene Volokh, Volokh Conspiracy, The Washington Post (Nov. 23, 2018 11:20 AM),
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/03/15/n-y-bill-would-
require-people-to-remove-inaccurate-irrelevant-inadequate-or-excessive-statements-about-
others/?utm_term=.bbb6b2a0ae09.
11
Melvin v. Reid 112 Cal.App. 285, 297 P. 91 (1931).

Electronic copy available at: https://ssrn.com/abstract=3442990

RIGHT TO BE FORGOTTEN - RECOGINTION, LEGISLATION AND ACCEPTANCE... 43

Reid11and Sidis v. FR Publishing Corporation12 are to some degree relevant.

In Melvin’s case an ex-prostitute was charged with murder and then
acquitted; she subsequently tried to assume a quiet and anonymous place in
society. However, the 1925 film The Red Kimono revealed her history, and
she successfully sued the producer. The court reasoned, “Any person living a
life of rectitude has that right to happiness which includes a freedom from
unnecessary attacks on his character, social standing or reputation.”13 While
in the latter case plaintiff, William James Sidis was a former child prodigy
who wished to spend his adult life quietly, without recognition; however, an
article in The New Yorker disrupted this. The court held here that there was
limits to the right to control one’s life and facts about oneself, and held that
there is social value in published facts, and that a person cannot ignore their
celebrity status merely because they want to.”14

However, in spite of these slow developments, the prospects of a Federal law

or a Constitutional Amendment providing for a standalone Right to be
forgotten are quite dim in the United States, especially the strong opposition
on the ground of being inconsistent with the First amendment of the US
Constitution that provides the freedom of speech and expression.15 It is thus
contended that the Right will effectively result in new form of Censorship.
However, these criticisms are consistent with the proposal that the only
information that can be removed by user’s request is content that they
themselves uploaded.16

4. India - The Republic of India largely follows a Common Law system. The
Country has a Billion-Dollar Tech Industry. The Information Technology
Act, 200017 is the primary law in India dealing with cybercrime and electronic
12
Sidis v. F-R Pub. Corp., U.S. LEXIS 26, 311 U.S. 711, 61 S. Ct. 393, 85 L. Ed. 462 (1940).
13
Melvin v. Reid, (1931) 112 Cal.App.
14
Sidis v. Fr Publishing Corp, CASE BRIEFS (Nov.20, 2018 10:23 AM),
https://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/privacy/sidis-v-f-r-
publishing-corp/.
15
U.S. CONST. amend. I, § 6.
16
John Hendel, Why Journalists Shouldn’t Fear Europe’s Right to be Forgotten, The Atlantic
(Nov. 23, 2018 12:34PM), https://www.theatlantic.com/technology/archive/2012/01/why-
journalists-shouldnt-fear-europes-right-to-be-forgotten/251955/.
17
Information Technology Act, 2000, No. 21, Acts of Parliament, 2000.

Electronic copy available at: https://ssrn.com/abstract=3442990

44 Nirma University Law Journal: Volume-6, Issue-2, December-2018

commerce. However, neither the Act nor the IT Rules 201118 mention the
Right to be forgotten. Moreover, the country still has no active Data Privacy
Framework. The government under the chair of retired Supreme Court
Judge BN Srikrishna in August 2017 set up the Srikrishna committee. The
committee submitted its report on the data protection law in July 2018. The
report could have potentially far reaching implications on data handling and
processing practices by both Indian as well as foreign companies along with
government departments.19 Various technology companies, startups and
industry bodies share the view for a law that would safeguard customers and
help accelerate India’s fast growing digital economy. In the words of Justice
Srikrishna himself “the citizen’s rights have to be protected, the
responsibilities of the states have to be defined but the data protection can’t
be at the cost of trade and industry.” The Committee report lays a significant
emphasis on obtaining the consent of an individual for both processing and
using personal data. The committee said consent must be “informed”,
“specific” and “clear”, and needs to be capable of being withdrawn as easily
20
as it was given. Section 27 of the bill has listed out various circumstances in
which an individual will have the “right to restrict or prevent continuing
disclosure of personal data” or in other words the right to be forgotten. They
are –
a. If data disclosure is no longer necessary or
b. the consent to use data has been withdrawn or
c. If data is used contrary to the provisions of the law21.

18
Information Technology Rules 2011,Wipo (Nov. 18, 2018 10:48 PM),
http://www.wipo.int/edocs/lexdocs/laws/en/in/in098en.pdf.
19
Bhumika Khatri, The Personal Data Protection Bill 2018 Does Everything But Protect Personal
Data, Inc42.com (Nov. 20, 2018), https://inc42.com/features/the-personal-data-protection-
bill-2018-does-everything-but-protect-personal-data/.
20
Shaikh ZoaibSaleem, Whatis the right to be forgotten in India,Live Mint (Nov. 8, 2018 10:20
PM), https://www.livemint.com/Money/yO3nlG7Xj4vo2VJsmo8blL/What-is-the-right-to-be-
forgotten-in-India.html.
21
Aroon Deep, Srikrishna Committee Data Protection Bill released, Media Nama (Nov. 18, 2018
10:21 PM), https://www.medianama.com/2018/07/223-live-justice-srikrishna-data-protection-
report-being-submitted-to-it-ministry/.

Electronic copy available at: https://ssrn.com/abstract=3442990

RIGHT TO BE FORGOTTEN - RECOGINTION, LEGISLATION AND ACCEPTANCE... 45

An adjudicating officer will determine the enforceability of the Right in one

of the three scenarios. The same officer will have to determine that the right
of the individual to restrict use of her data over-rides the right to freedom of
speech or right to information of any other citizen, guaranteed under the
Indian Constitution22 and Right to Information Act 200523 respectively. The
pertinent fact however remains, that the Draft bill is liable to several
modifications as a part of Legislation in any Parliamentary Process. The
proposed data protection law will set up a Data Protection Agency (DPA),
which will be an independent regulatory body responsible for the
24
enforcement and effective implementation of the law. The draft Bill
provides for various penalties that may be imposed for violations of the
same. In spite of these developments the “right to be forgotten” as
understood in many Western states may not be immediately available to
Indian citizens since India has no privacy laws as such in the country.

III. CRITICAL ANALYSIS OF INDIA’S PROPOSED PRIVACY LAW

FRAMEWORK

While to address the burning issue in absence of any solid framework,

Justice BN Srikrishna led committee bill called “The Personal Data
Protection Bill, 2018” is highly significant. It has largely drawn inspiration
from the EU’s General Data Protection Regulation (GDPR). The bill defines
the essentials of a regulated and uniform data ecosystem, on the lines of the
GDPR, laying out the conditions under which data may be collected, stored
and processed, consequent fiduciary responsibilities and penalties, and the
appointment of data protection overseers. It also interprets personal data in
an open-ended manner, to include identifiers like caste, religion, political
beliefs and associations, gender, health and financial data, official identifiers
— everything that can be cross-indexed to arrive at the identity of an
anonymous person. The notion of informed consent is central to the
22
INDIA Const. art. 19, cl. 1.
23
Right to Information Act, 2005, No. 22, Acts of Parliament, 2005.
24
SS.Rana, Principles of Evolving Data Protection, Mondaq (Nov. 20, 2018 2:12
PM),http://www.mondaq.com/india/x/729844/data+protection/Principles+Of+The+Evolving
+Data+Protection.

Electronic copy available at: https://ssrn.com/abstract=3442990

46 Nirma University Law Journal: Volume-6, Issue-2, December-2018

collection and processing of data.25 It may said to be the “Indian GDPR”. As

already, mentioned Section 2726 of the bill talks about Right to be forgotten
and states that an Adjudicating Officer shall have the power to decide about
the procedures relating to the collection, processing and the final disposal of
the personal data of the data principal. Although an exemption has been
provided “journalistic purposes”, but the bill also provides that Section 427
(right to privacy) needs to be respected and, Section 3128 (fair and reasonable
processing duties) will apply. This again serves to put certain restraints on
the powers of journalism, as it will make the powers exercisable at the
touchstone of how an adjudicating officer interprets it that was never
contemplated by the Constitution and rejected by the judiciary. Where on
one hand the bill serves to provide right to the citizens but it also puts certain
restraints on the processors of the personal data who would be working
under the cloud of fear from the imposition of severe penalty that may be as
high as INR 5 crores. Moreover, Section 73 of the bill provides that a penalty
as high as INR 1 crore could be imposed on any person who acts in
contravention to the provisions and for which no separate penalty is
prescribed. These provisions can be easily employed against journalists and
such other data fiduciaries. Moreover, questions regarding the
29
constitutionality of the bill may be raised, as constitutional provisions don’t
explicitly provide for privacy as a ground for imposing restrictions, though
an exception may be made in one of the proviso’s providing for reasonable
restriction. However, if required privacy as a restriction may be inserted by a
major constitutional amendment later.

25
M Sridhar Acharyulu, When it isn’t Right to forget, The Indian Express (Nov. 20, 2018 4:50
PM), https://indianexpress.com/article/opinion/columns/personal-data-protection-bill-2018-
justice-bn-srikrishna-committee-5355284/.
26
The Personal Data Protection Bill, 2018, (Nov. 20, 2018 5:31 PM),
http://meity.gov.in/writereaddata/files/Personal_Data_Protection_Bill,2018.pdf.
27
Ibid.
28
Ibid.
29
INDIA Const. Art. 19, Cl. 2.

Electronic copy available at: https://ssrn.com/abstract=3442990

RIGHT TO BE FORGOTTEN - RECOGINTION, LEGISLATION AND ACCEPTANCE... 47

IV. RELEVANT LITIGATION AND LEGAL DEVELOPMENTS

IN INDIA

Though the Legal Proceedings regarding the Right to be forgotten in India

are numerous, yet they are not definitive in nature. The Hon’ble Supreme
Court of India in it is the Judgment in the case of Justice KS Puttaswamy
(Retd.) and Anr. v. Union of India and Ors. 30 declared that Right to Privacy
is a fundamental right in India. It was based on a relook of previous cases
such as MP Sharma v. Satish Chandra31 and Kharak Singh v. State of Uttar
Pradesh.3233However, the main issue in all these cases was Right to Privacy
and not Right to be forgotten as such. In-fact many experts contended that
the right to be forgotten is distinct from the right to privacy since the right to
be forgotten involves removing information that was publicly known at a
certain time and not allowing third parties to access the information and the
right to privacy deals with prevention of information that is not publicly
known to enter into public domain.3435 This contention will largely divorce
the Right to be forgotten from Right to Privacy which has off late resulted in
judgments in a catena of cases. But it is submitted that at the same time they
are closely related since the fundamental question involves prevention of
spill of information that is deemed as constituting “Private” and the Right to
be forgotten has been largely presumed to be part of Right to Privacy in
Indian Context. Thus while the Right to be forgotten may never really have
been a focus of Indian Jurisprudence, the Hon’ble Supreme Court of India in
the case of R. Rajagopal v. State of T.N 36 for the first time in 1994 dealt with
a different concept known as the Right to be left alone. In that case, a

30
KS Puttaswamy (Retd.) v. Union of India and ors. 2017 SCC Online SC 1462.
31
MP Sharma v. Satish Chandra AIR 1954 SC 300.
32
Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295.
33
Priyanka Mittal, Is privacy a fundamental right? Two cases that Supreme Court will look at,
Live Mint, (Nov.18, 2018 10:21 PM), https://www.livemint.com/Politics/7oHGx6UJfLD0u
IDXFwV9CL/Is-privacy-a-fundamental-right-Two-cases-that-Supreme-Court.html.
34
L.GordonCrovitz, Forget any ‘Right to Be Forgotten’, Wall Street Journal, (Nov.19, 2018 10:12
PM), https://www.wsj.com/articles/SB10001424052748704658204575610771677242174.
35
Prof.Dr. Rolf H. Weber, The Right to Be Forgotten More Than a Pandora’s Box?
,Jipitec,(Nov.20,2018 10:21 PM), https://www.jipitec.eu/issues/jipitec-2-2-2011/3084.
36
R.Rajagopal v. State of T.N (1994) 6 SCC 632.

Electronic copy available at: https://ssrn.com/abstract=3442990

48 Nirma University Law Journal: Volume-6, Issue-2, December-2018

prisoner had written his autobiography in jail describing the conditions there
and the nexus between prisoners and several IAS and IPS officers. He had
given the autobiography to his wife so that she may publish it in a particular
magazine. However, the publication was restrained in various matters and
the question arose whether anyone has the right to be let alone and
particularly in jail. which provided that an individual should have the right to
safeguard his/her privacy by prevention of publication of material dealing
with life, marriage, family, procreation, child-bearing, motherhood and
education among other matters without his/her prior permission.37 The court
upheld the same. But at the same time a rule that provided non-objection
w.r.t publishing of Public records including Court records was laid down.
The Apex Court’s observation in the case gave legs to the concept of Right to
be left alone. The judgement may be said to be a precursor of the
contemporary litigation on the matter. In spite of this, owing to a lack of a
Proper Supreme Court Judgment in the matter there are divergent High
Court rulings that have potentially opened a Pandora’s Box with reference to
the matter.

1. Sri Vasunathan vs The Registrar General, High Court of

Karnataka and Ors38- The Karnataka High Court upheld the right to
be forgotten in this case. In an earlier case a woman went to court to get
a marriage certificate annulled, claiming to have never been married to
the man on the certificate. After the two parties came to an agreement,
the woman’s father filed a petition, seeking court order that her
daughter’s name wanted be removed from search engines regarding
criminal cases in the high court. The Hon’ble High Court approved the
father’s request, stating that she had a right to be forgotten. Hon’ble
Justice AnandByrareddy, the author of the judgment the ruling would
align with western states’ decisions, which typically approve of the right

37
HinaIliyas, Right to Privacy under Article 21 and the Related Conflicts, Legal Services India
(Nov.21, 2018 10:12 PM), http://www.legalservicesindia.com/article/1630/Right-To-Privacy-
Under-Article-21-and-the-Related-Conflicts.html.
38
Sri Vasunathan vs The Registrar General, High Court of Karnataka and Ors 2017 SCC
Online Kar 424.

Electronic copy available at: https://ssrn.com/abstract=3442990

RIGHT TO BE FORGOTTEN - RECOGINTION, LEGISLATION AND ACCEPTANCE... 49

to be forgotten when dealing with cases “involving women in general

and highly sensitive cases involving rape or affecting the modesty and
reputation of the person concerned.” Thus, while Right to be forgotten
was upheld it was not based on the Fundamental Right to Privacy, but
instead on the idea of modesty and reputation of women, which is again
unclear.39

2. Civil Writ Petition No. 9478 of 201640 – The name of the case is no
longer available on Legal Databases owing to a Kerala High Court order
dated February 23, 2017. In the present case the Kerala High Court
ruled in favour of Right to be forgotten by asking the online Legal
database Indian Kanoon to remove name of the rape victim from a
previous judgment in an interim order until further orders were issued.41

3. DharmrajBhanushankar Dave v. State of Gujarat42- In this

case, the Gujarat High Court rejected the plea for “permanent restraint
[on] free public exhibition of the judgment and order.”43 The judgment
in question concerned proceeding against the petitioner for a number of
offences, including culpable homicide amounting to murder. Both the
Sessions court and the High Court acquitted the petitioner. The
petitioner contented that despite the judgment being classified as
‘unreportable’, it was published and indexed by an Online Legal
Database. The High Court dismissed the petition because:

a. The Petitioner failed to show any provisions in law which are attracted,
or threat to the constitutional right to life and liberty,

39
SS.Rana and Co.Advocates, The Right to be forgotten, - an Indian Perspective, SS Rana CLC
News Letter Nov.20, 2018 10:21 AM),http://ssrana.in/News/CL%20Connect%20NewsLetter/
2017/06/India-Will-judiciary-recognize-the-emerging-right-to-be-forgotten.htm#right.
40
Civil Writ Petition No. 9478 of 2016
41
AnamikaKundu, Right to Be Forgotten: Its Applicability in India, RMNLU Review, (Nov.20,
2018 6:21 PM) https://rmlnlulawreview.wordpress.com/2017/10/25/right-to-be-forgotten-its-
applicability-in-india/.
42
DharmrajBhanushankar Dave v. State of Gujarat 2015 SCC Online Guj 2019.
43
Swapnil Tripathi, India and its version of The Right to Be Forgotten, Social Legal Review NLS,
(Nov. 20, 2018 6:32 PM),http://www.sociolegalreview.com/india-and-its-version-of-the-right-
to-be-forgotten/.

Electronic copy available at: https://ssrn.com/abstract=3442990

50 Nirma University Law Journal: Volume-6, Issue-2, December-2018

b. Publication on a website does not amount to ‘reporting’, as reporting

only refers to that by law reports.44

4. LakshVir Singh Yadav vs. Union of India45 - The case was filed in
April 2016 in the Delhi High Court. The court began to examine the
issue after a banker requested to have his personal details removed from
search results following a marital dispute. Since the case was also filed
against the Union of India and others, and the Court asked Ministry of
Communication and Information Technology of India, Google Inc.,
Google India Pvt Ltd along with IKanoon Software Development Pvt Ltd
the publisher of Indian Kanoon, a website which publishes court
judgments to respond by September 19, 2016.46 The fundamental
question asked by the Delhi High Court to Centre and Google was
whether right to privacy include right to delink from the internet the
irrelevant information. The petition also raised the question “whether
data controllers or intermediaries such as Google, are required to delete
information that is inadequate, irrelevant or no longer relevant if they
receive a request for removal of such data.”47 Subsequently Google Inc.
in an affidavit made a submission that “There is no reason for creation
of a separate legal framework under ‘right to be forgotten’ to delink
‘irrelevant information’ from the Internet.’ and “even if it disables or
blocks a site in its search engine, that webpage will remain on the
original website and would be accessible on other search engines.” The
Internet Freedom Foundation (IFF) secured a legal intervention with
consent from the Delhi HC in the same case.48 This petition remained

44
Amber Sinha, Right to be Forgotten: A Tale of Two Judgements, The Centre for Internet and
Society, (Nov. 21, 2018 7:21 PM), https://cis-india.org/internet-governance/blog/right-to-be-
forgotten-a-tale-of-two-judgments.
45
LakshVir Singh Yadav v. Union of India WP(C) 10/21 2016 (Del.).
46
NRI’s loses Case to Remove His Name and the Legal Case Info from Google Search, The Link,
(Nov.12, 2018 5:12 PM),http://thelinkpaper.ca/?p=61271.
47
Delhi high court asks Centre about Google’s ‘right to be forgotten’, ET Tech, (Nov.12, 2018
10:12 PM), https://tech.economictimes.indiatimes.com/news/internet/delhi-high-court-asks-
centre-about-googles-right-to-be-forgotten/52074343.
48
Salman SH, Delhi HC accepts intervention against a Right to be Forgotten case in India, Media
Nama, (Nov. 21, 2018 10:01 AM), https://www.medianama.com/2016/09/223-delhi-hc-right-
to-be-forgotten/.

Electronic copy available at: https://ssrn.com/abstract=3442990

RIGHT TO BE FORGOTTEN - RECOGINTION, LEGISLATION AND ACCEPTANCE... 51

pending before the Delhi High Court as it sought Centre’s response

though media reports have indicated that the NRI lost49 and could have
several ramifications.

These different judgments show that Indian Law concerning the issue is
ambiguous and myopic at the moment and need of suitable Digital Privacy
Framework and Comparative Jurisprudence is required to resolve the
matter. In the absence of such law, Article 21 50is the only refuge since over a
period has acquired a meaning of a matrix of several rights. However, the
rights under Article 21 come with a caveat since they are generally available
only against the state51. Their application in cases where a private party is
involved is legally unclear and therefore an independent legal standard for
the right to be forgotten, at a Pan-India level does not exist and the road
ahead is still unclear and uncharted. However an adoption and
implementation of the Right to be forgotten in India would mean that
citizens no longer need to file a case in order to request for information from
search engines to be removed which could have significant impact the
Internet Publishers and Search Engines.52

V. OPPOSITION OF RIGHT TO BE FORGOTTEN

Apropos Right to be forgotten, the fundamental criticism is the fact that it is

prima facie restrictive of the right to freedom of speech and expression
enshrined in Constitutions of many States such as the United States53 and
India54 etc. that have very strong municipal freedom of speech laws, which
would be in direct contravention to Right to be forgotten. While a

49
NRI loses Privacy case, Pogo Was Right, (Nov.19, 2018 10:21 PM), https://www.pogowasright.
org/nri-loses-case-to-remove-his-name-and-legal-case-info-from-google-search/.
50
INDIA.CONST. art. 21.
51
Kasturika, “The Right to be Forgotten”: Balancing Personal Privacy with the Public’s right to
access Information, CCG Blogs, (Nov. 18,2018 12:12 PM), https://ccgnludelhi.wordpress.com/
2016/10/12/the-right-to-be-forgotten-balancing-personal-privacy-with-the-publics-right-to-
access-information/.
52
Amber Sinha, Supra note 47.
53
.US Const. amend.1.
54
INDIA Const. art.19, cl.1.

Electronic copy available at: https://ssrn.com/abstract=3442990

52 Nirma University Law Journal: Volume-6, Issue-2, December-2018

harmonious construction, could possibly allow a watered down/ a limited

form of the right to be forgotten that would be reconcilable with National
Constitutions this limited form of the right individuals could still have
material removed that has been uploaded by others as constituting
censorship.

The General Data Protection Regulation in the EU was criticised since it was
perceived to be too broad and vague. The majority of this criticism was that
its enactment would require data providing and controlling companies to
deal with many unnecessary cases in which the third parties may
unreasonably demand identification and removal of information. Yet
another criticism has been that in order to prevent Logistical and
Commercial Ramifications in the form of fines companies such as Google etc.
may simply prefer to delete the information on a ‘whole-sale’ basis. In
addition to this, there are concerns about the requirement to take down
information that others have posted about an individual since the definition
of personal data in Article 4(2) of GDPR includes “any information relating
to” the individual which would affect the ability of businesses and individuals
to carry out business intelligence, particularly due diligence to comply with
and Know Your Customer (KYC) and other mandatory identification laws.55
Right to be forgotten could also potentially affect principle of accountability.
There are concerns that Search engine neutrality and integrity may be
compromised as well.56Google CEO Larry Page commented that the concept
of Right to be forgotten “[could be] used by other governments that aren’t as
forward and progressive as Europe to do bad things”.57

55
Jason Wright,Something’s shouldn’t be forgotten, Wall Street Journal (Nov. 16, 2018 10:21
PM), https://www.wsj.com/articles/jason-wright-some-things-should-not-be-forgotten-
1421689011.
56
Michael Kassner, Search engine bias: What search results are telling you (and what they’re
not), Tech Republic (Nov. 20, 2018 10:05 PM), https://www.techrepublic.com/blog/it-
security/search-engine-bias-what-search-results-are-telling-you-and-what-theyre-not/.
57
Samuel Gibbs, Larry Page: ‘right to be forgotten’ could empower government, The Guardian
(Nov. 16, 2018 10:35 PM), https://www.theguardian.com/technology/2014/may/30/larry-
page-right-to-be-forgotten-government-repression.

Electronic copy available at: https://ssrn.com/abstract=3442990

RIGHT TO BE FORGOTTEN - RECOGINTION, LEGISLATION AND ACCEPTANCE... 53

VI. SUPPORT OF RIGHT TO BE FORGOTTEN

On the other side of the spectrum, Right to be forgotten has received support
from many sections of the populace across national jurisdictions. In
landmark judgment of Justice K. S. Puttaswamy (Retd.) and Anr. v. Union
of India and Ors. 58in which the Hon’ble Supreme Court of India declared
privacy a fundamental right Justice Kaul, in his separate but concurring
judgment on the nine-judge Bench observed that-

The impact of the digital age results in information on the internet being
permanent. Humans forget, but the Internet does not forget and does not let
humans forget. Any endeavour to remove information from the internet does
not result in its absolute obliteration. The footprints remain. It is thus, said
that in the digital world preservation is the norm and forgetting a struggle
and 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. Such a right 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 nth extent
for all and sundry to know.59

Meanwhile in foreign jurisdictions like the United States according to a

survey conducted by Benenson Strategy Group and SKDKnickerbocker
showed Eighty-eight percent support for a law that would let them petition
companies like Google, Yahoo and Bing to remove certain personal
information that appears in search results amongst the American Citizens60.
In July 2015, Google, a leading search engine that received requests for
delinking under Right to be forgotten framework accidently released data

58
Justice KS Puttaswamy (Retd.) and Anrs. V. Union of India2017 SCC Online SC 1462.
59
KrishnadasRajagopal, To be forgotten online is a part of right to privacy, The Hindu (Nov. 20,
2018 10:21 PM), https://www.thehindu.com/news/national/to-be-forgotten-online-is-part-of-
privacy-justice-kaul/article19571462.ece.
60
Mario Trujillo, Public wants ‘right to be forgotten’ online, The Hill (Nov. 20, 2018 10:23 PM),
https://thehill.com/policy/technology/236246-poll-public-wants-right-to-be-forgotten-online.

Electronic copy available at: https://ssrn.com/abstract=3442990

54 Nirma University Law Journal: Volume-6, Issue-2, December-2018

that “shows 95% of Google privacy requests are from citizens out to protect
personal and private information – not criminals, politicians and public
figures.61 The act was used as validation claim by the proponents that the
Right to be forgotten will actually be used most by the Common citizen and
not for “promoting censorship” as claimed by the detractors. Another
proposal by the supporters has been to create Advisory Councils of various
professors, lawyers, and government officials etc. to regulate the working
under the right. The EU realizing the potential inconsistency with the Right
to freedom of speech and expression included an exception in the GDPR
2016 “for the processing of personal data carried out solely for journalistic
purposes or the purpose of artistic or literary expression in order to reconcile
the right to the protection of personal data with the rules governing freedom
of expression.” In response to the criticism, the EU has released a factsheet
to address what it considers myths about the right to be forgotten62. Further
the right to be forgotten was replaced by a more limited right to erasure in
the version of the GDPR adopted by the European Parliament in March
2014. Article 17 provides that the data subject has the right to request
erasure of personal data related to him on any one of a number of grounds
including non-compliance with article 6.1 (lawfulness) that includes a case
where the legitimate interests of the controller is overridden by the interests
or fundamental rights and freedoms of the data subject which require
protection of personal data.63 Supporters of the Right claim that GDPR
actually upholds freedom of speech and expression since the meaning which
the term “journalistic purposes” has been assigned under Article 80 of the
statute is wide enough to grant for discretion with reference to the
information that is to be removed.

61
Sylvia Tippmann and Julia Powles, Google accidentally reveals data on ‘right to be forgotten’
requests, The Gaurdian (Nov. 20, 2018 10:29 PM), https://www.theguardian.com/
technology/2015/jul/14/google-accidentally-reveals-right-to-be-forgotten-requests.
62
Mythbuster: The Court of Justice of the EU and the “Right to be Forgotten”, European
Commission (Nov. 20, 2018 10:18 AM), http://web.archive.org/web/20140924080430/
ec.europa.eu/justice/newsroom/data-protection/news/140918_en.htm.
63
Julia Powles, What did the media miss with the Right to be forgotten coverage, The Gaurdian
(Nov. 16, 2018 10:12 PM), https://www.theguardian.com/technology/2014/may/21/what-did-
the-media-miss-with-the-right-to-be-forgotten-coverage.

Electronic copy available at: https://ssrn.com/abstract=3442990

RIGHT TO BE FORGOTTEN - RECOGINTION, LEGISLATION AND ACCEPTANCE... 55

VII. CONCLUSION

The judiciary in different jurisdictions has interpreted the Right to be

forgotten in divergent manners. Closer home in India the Courts have upheld
the Right not on the touchstone of Right to Privacy but it was laid down after
giving due consideration to the principle of protection of women modesty.
This has again opened the topic to introspection and dissection to a
considerable extent. Though the court recognized a substantial principle and
tried to clear away the fog of confusion but with its ancillary observations
that it is recognized for the protection of women’s modesty and cases
involving women which has rendered it a to become a very gender specific
observation that has excluded many other significant sections of the society
and has again raised a doubt as to what are the circumstances under which
this concept could be applied unambiguously. Similarly this decision has
come into conflict with a major verdict of the Apex court which had held that
Judicial Pronouncement, being a public record and document was held to be
allowed to published and thus gave way, to the Right to be left alone but a
High court judgment allowed the Right to be forgotten to apply to a judicial
pronouncement and ordered that the name of the party be removed from all
the platforms, be it electronic or physical or such other platforms. This is
thus complete contradiction to the decision on Right to be left Alone,
Moreover, adding on, further to the confusion is the decision of another High
Court in the case of thatout rightly rejected the plea by a petitioner that his
information be removed from the public domain, however the court rejected
it on the ground that it does not attract any relevant provision of law and
there is no suitable digital framework upon which the judiciary could tread
and reach a solid conclusion. It may be observed that even legislature has
failed to give the kind of attention to this issue that it required and has failed
to carve out any framework for the courts. Thus, courts also, in the absence
of any relevant statutes have failed to refine the law in India. On an
international plane, while progress has been made in Developed Polities of
the West such as the EU have enacted Statues, the US has seen support for
the initiative and most notably Argentina has developed it further in a

Electronic copy available at: https://ssrn.com/abstract=3442990

56 Nirma University Law Journal: Volume-6, Issue-2, December-2018

landmark judgment, Global experiences show that as we move forward in the

Digital age such issues and Legal perspectives will arise and affect our
Collective Conscience. To conclude, Law as a Dynamic subject must stand up
to the change, provide for solutions and respond to the challenge before
substantial injustice takes place.

Electronic copy available at: https://ssrn.com/abstract=3442990