RIGHT TO BE FORGOTTEN.

A PROJECT SUBMITTED TO:

ARMY INSTITUTE OF LAW, MOHALI.

BY

ABHIDHA GUPTA (1868)

UNDER THE GUIDANCE OF DR. BAJIRAO RAJWADE

LAW OF CRIMES- II

IN PARTIAL FULFILLMENT OF THE REQUIREMENT FOR

THE AWARD OF DEGREE OF B.A. LL.B.

PUNJABI UNIVERSITY, PATIALA, PUNJAB.

SUBMISSION YEAR: JANUARY-MAY 2022.

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 DECLARATION

It is certified that the project work presented in this report entitled “RIGHT TO BE
FORGOTTEN.” embodies the results of original research work carried out by me. All the ideas
and references have been duly acknowledged.

Date of Submission: 5th May2022. Name:Abhidha

Roll No.: 1868

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 ACKNOWLEDGEMENTS

I would like to thank my teacher Dr. Bajirao Rajwade for giving me this opportunity of making
this project. I would also like to thank my college Army Institute of Law, Mohali for providing
me with the resources to carry out the research and make this project. I would like to extend my
grateful attitude towards my parents, friends and family for their continuous support. Last but not
the least I thank the Almighty for all his blessings.

Name: Abhidha Gupta

Roll No.: 1868

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 INDEX

S. NO. TOPIC PAGE NO.

1 INTRODUCTION 5

2 RIGHT TO BE FORGOTTEN IN INDIA 7

3 RIGHT TO BE REMEMBERED 12

4 LOOPHOLES RELATED TO RIGHT TO BE 13

FORGOTTEN

5 CRITICAL ANALYSIS OF INDIA’S PROPOSED 14

PRIVACY LAW FRAMEWORK

6 CONCLUSION 16

4
 INTRODUCTION
The loss of privacy needs to be conserved which gave rise to the Right to be Forgotten as it
provides people to have the civil right to request for the removal of any personal information
from the Internet. The Right to be forgotten commonly acknowledges a method asking for the
removal or delisting of the information from any search engine. In other words, it has been
considered as a right of individuals “to determine for themselves when, how, and to what extent
information about them is communicated to others” or as a right that gives the individual
increased control over information about them1. The key test to be applied in “right to be
forgotten” cases is whether the personal information in question is “inadequate, irrelevant or no
longer relevant.” The right to be forgotten can be called as the right to erasure. It clashes with the
open nature of the web, free flow of information and privacy of a person. It is not expressly
acknowledged in Indian Constitution or any other international human right, but it came into
being with the judgment passed by the Court of Justice of the European Union (CJEU) in the
case of Google Spain in 2014. This right finds its roots on the ‘right to oblivion’ or droit à l’oubli
in the French jurisprudence which allowed accused to ask for the removal of the information
concerning their crime after serving their sentence for further ease of their life. This provided the
base to the European Union Data Protection Directive, 1995 for recognizing right to be forgotten
which provides individuals an opportunity for rectification, erasure or blocking of any data in
connection to them.

In 1998, Mario Costeja González, a Spaniard, had run into financial difficulties and was in
severe need of funds. As a result, he advertised a property for auction in the newspaper, and the
advertisement ended up on the internet by chance. Mr Gonzáles, unfortunately, was not forgotten
by the internet. As a result, news about the sale was searchable on Google long after he had fixed
his financial issue, and everyone looking him up assumed he was bankrupt. Understandably, this
resulted in severe damage to his reputation, prompting him to take up the matter to the court.
Ultimately, this case gave birth to the concept of the “right to be forgotten”.

The European Court of Justice ruled against the search engine giant Google, declaring that under
certain circumstances, European Union residents could have personal information removed or
deleted from search results and public records databases.2
1
Alan Westin, Privacy and Freedom, 166 (1967).
2
Google Spain v. Agencia Espanola de Protection, number C-131/12.

5
 

However, in 2019 the EU Court restricted the ruling only to the European Union, saying Google
does not have to apply the “right to be forgotten outside Europe”.

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 RIGHT TO BE FORGOTTEN IN INDIA

In India, people are provided with some fundamental rights such as right to freedom of speech
and expression, right to privacy and so on. Hohfeldian theory provides that where there is a right
of one person, there is a duty of another and privacy is the fundamental right of a person 3. Thus,
there is an implied duty of others to preserve it. The scope of privacy is very wide in nature and
connects individual’s autonomy with the government, society, companies and private
individuals. The right to privacy is considered as the principle right that provides a basis to
human dignity, freedom of speech and expression and hence, privacy of a person needs to be
conserved leading to the development of ‘right to be forgotten’. Right to privacy should be
conserved for practicing Right to free speech and expression in its true sense which is necessary
for safeguarding free flow of information, opinion and ideas and it has been recognized as the
fundamental and basic right also even by UDHR, ICCPR and so on. This right includes the
choice of publishing and removing the personal data from the online platforms and therefore,
leading to the development of ‘right to be forgotten’. Here, comes the responsibility of
government to protect the rights of people according to Lokean’s Social Contract Theory and
thus, B. N. Srikrishna Committee came into picture that gave substantial thrust on processing and
using personal data only after taking the consent of that very individual.

The right to be forgotten came to being in india with the BN Srikrishnan Committee

BN Srikrishna Committee

The committee was formed to analyze the problems related to data protection, come up methods
to address them and then to draft a data protection bill. Personal data as defined by the committee
is the data which helps to reveal the identity of an individual either directly or indirectly. It also
came out with the inference that a condition precedent for sharing any personal data should be
consent which must be “informed”, “specific” and “clear” and withdrawal of such consent
should be as simple as giving it for any specific purpose. The committee laid down grounds for
those circumstances where data can be processed without consent such as emergency, where
state requires data processing for accomplishing its welfare state functions, where compliance
with law or court order is a requirement and in the contracts of employment. The committee had

3
K S Puttaswamy v UOI, (2017) 10 SCC 1

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levied a penalty of 5 Crore or 2% of the worldwide turnover for offences such as failure to
perform duties or processing the data which is not in compliance with the bill. Other laws needed
to be kept in mind while sharing the personal data with any search engine are Information Act,
2000 and the Census Act, 1948. The committee had finally drafted bill on Data Protection
Framework for India which does not have any provision for the right of people known as Right
to Erasure but Europe had come with Personal Data Protection Bill, 2018 to provide people with
the Right to Erasure. Though the said draft does not include right to be forgotten in an explicit
manner but provides various other methods by which an individual can resort to protect his/her
personal data and to manage it as well.

Judicial Pronouncements

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.N4 for the first time in
1994 dealt with a different concept known as the Right to be left alone. In that case, a 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. 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.

Right to be forgotten has also been developed by several judicial pronouncements. It was first
recognized in Justice Puttaswamy v. Union of India by the Supreme Court Justice Sanjay Kishan
Kaul in its tangible and intangible form as the individuals have the right to put and remove the
4
R.Rajagopal v. State of T.N (1994) 6 SCC 632.

8
data from online sources. Kaul stated, “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”. The right to be forgotten finds its roots in Article 19 and 21 of the
Constitution of India which does not provide it as an unfettered and unlimited right and thus,
subject to the restrictions such as other fundamental right, abide with legal obligations, public
interest and health, archiving, researching and defense of legal claims. Kaul J. held that the past
mistakes of individuals should not be used as a weapon against them with the help of the digital
footprint and hence, people would be authorized to curb publication of the data in relation to
them. The Court relied on the 2016 European Union Regulation (Article 17) that had given birth
to the right to erasure5.

In Sri Vasunathan v. Registrar, the father of the aggrieved woman had come to court for the
removal of her name from the earlier decision of the High Court because his daughter had to face
severe consequences of her name attached the case such as her relationship with her husband and
her reputation in the society. The Karnataka High Court, then, had asked the Registry to ensure
that the aggrieved name should not pop up when searched on any search engine or public
domain. The High Court conclusively observed, “This is in line with the trend in Western
countries of ‘right to be forgotten’ in sensitive cases involving women in general and highly
sensitive cases involving rape or affecting the modesty and reputation of the person concerned.”6

In Dharamraj Dave v. State of Gujarat, the petitioner, who was acquitted in a criminal case, had
argued that Google and Indian Kanoon are not authorized with publishing his name from a non-
reportable judgment of the high court on the grounds of him being adversely affected in his
personal and professional life. The High Court has rejected his plea and held that the publishing
judgment is not violating Article 21 of the Constitution and Justice RM Chhaya observed: “The
judgment in appeal is part of the proceedings and the said judgment is pronounced by this Court
and therefore, merely publishing on the website would not amount to same being reported as the
word “reportable+” used for the judgment is in relation to it being reported in law reporter.”7

5
(2017) 10 SCC 1.
6
W.P. No. 62038/2016.
7
C/SCA/1854/2015.

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Recently, a Single Judge Bench of the Madras High Court headed by Mr Justice N. Anand
Venkatesh, had given an important order regarding “right to be forgotten” (RTBF) or right to
erasure as a facet of the fundamental “right to privacy”.

 In this case, the petitioner’s name continued to appear in the High Court’s verdict and was freely
available to anyone who would type their name into Google search. Despite the fact that the
petitioner was acquitted, they were named as an accused throughout the preceding judgment.
Therefore, the petitioner contends that this has a negative influence on his public image. As a
result, the petitioner requests the High Court to issue an order redacting their name from the
verdict.8

A petition is being currently heard by the Delhi High Court for removal of the name of the
petitioner’s mother and wife from an online database of the case as it was causing prejudice to
him and affecting his employment opportunities. The High Court had a question for clarification
from the Centre and Google that whether Right to delink from the Internet forms a part of the
Right to Privacy.9

The case of LakshVir Singh Yadav vs. Union of India10 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 46
judgments to respond by September 19, 2016. 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.” 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

8
Civil Writ Petition No. 9478 of 2016
9
WP(C) 1021/2016.
10
LakshVir Singh Yadav v. Union of India WP(C) 10/21 2016 (Del.).

10
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. This petition
remained pending before the Delhi High Court as it sought Centre’s response 49 though media
reports have indicated that the NRI lost and could have several ramifications.

Thus, remedy for erasure has been given by Karnataka High Court but not by Gujarat High Court
though it had been recognized even by the Supreme Court and henceforth, right to be forgotten
had spread its roots in India through various legislations and judicial pronouncements. Though
the right to be forgotten is not absolute in the draft proposed but the changes might be brought in
during the scrutiny by the Parliament.

Personal Data Protection Bill, 2018

The Personal Data Protection Bill was introduced in Lok Sabha on December 11, 2019 and it
aims to set out provisions meant for the protection of the personal data of individuals.
Clause 20 under Chapter V of this draft bill titled “Rights of Data Principal” mentions the “Right
to be Forgotten.” It states that the “data principal (the person to whom the data is related) shall
have the right to restrict or prevent the continuing disclosure of his personal data by a data
fiduciary”.
Therefore, broadly, under the Right to be forgotten, users can de-link, limit, delete or correct the
disclosure of their personal information held by data fiduciaries. A data fiduciary means any
person, including the State, a company, any juristic entity or any individual who alone or in
conjunction with others determines the purpose and means of processing of personal data.
Even so, the sensitivity of the personal data and information cannot be determined independently
by the person concerned, but will be overseen by the Data Protection Authority (DPA). This
means that while the draft bill gives some provisions under which a data principal can seek that
his data be removed, but his or her rights are subject to authorisation by the Adjudicating Officer
who works for the DPA.
While assessing the data principal’s request, this officer will need to examine the sensitivity of
the personal data, the scale of disclosure, degree of accessibility sought to be restricted, role of
the data principal in public life and the nature of the disclosure among some other variables.

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 THE RIGHT TO BE REMEMBERED

Right to be forgotten has got the status of digital human right but in contrary, said right,
sometimes, ends up not giving a clear picture of a person or his/her identity may not be fairly
represented or preserved and hence, right to be remembered comes into picture. In cases where
an individual is forgotten by the public services or by anyone whether fully or partially, the right
to be remembered should be applicable. The right to be remembered does not let people to have
complete control on the data, which is very essential to have a true and fair picture of an
individual as it entitles one to know deeply about the history of a person he/she might be dealing
with. It helps to preserve the information, which is in public interest, and makes it available for
researching, archiving and processes of due diligence and it is encouraged even by the data
protection authorities for collecting historical and cultural data. This provides better execution of
right of freedom of speech and expression.

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 LOOPHOLES RELATED TO RIGHT TO BE FORGOTTEN

The right to be forgotten is emerging on a quick pace and many rules are being formed to enforce
it in its pellucid form but nothing is perfect and hence, there are some loopholes in the laws
drafted for the same. The GAFA companies namely, Google, Apple, Facebook, Amazon have
become the centre stage in EU regulations because the functioning of their business rely on
collection and leverage of the personal data. The General Data Protection Regulation (GDPR)
provides people with a new right to manage their personal data on the wide ocean of internet and
puts an obligation on the companies to take reasonable care when it comes to the privacy of
people or not to keep the data for longer than is reasonable for the purpose for which it has been
processed but the word “reasonable” is not defined leading to one of the lacunas. People are not
provided with the right to appeal for the request of erasure made by them to any search engine
for de-listing. Another may be that the search engines are not required to notify the original
publisher of the information in question about the erasure request or decision of de-listing.

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 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 collection and processing of data 11. It may have said to be
the “Indian GDPR”. As already, mentioned Section 27 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 412 (right to privacy) needs to be respected and, Section 3113 (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

11
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/.
12
The Personal Data Protection Bill, 2018, (Nov. 20, 2018 5:31 PM),
http://meity.gov.in/writereaddata/files/Personal_Data_Protection_Bill,2018.pdf.
13
The Personal Data Protection Bill, 2018, (Nov. 20, 2018 5:31 PM),
http://meity.gov.in/writereaddata/files/Personal_Data_Protection_Bill,2018.pdf.

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can be easily employed against journalists and such other data fiduciaries. Moreover, questions
regarding the constitutionality of the bill may be raised, as constitutional 14 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.

CONCLUSION
14
INDIA Const. Art. 19, Cl. 2.

15
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
that out 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 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.

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