Right To Be Forgotten First Delhi Hc Guidelines

The Delhi High Court held last week that individuals who have been acquitted or discharged or whose cases have been quashed are entitled to have their names de-indexed from name-based internet search results. In doing so, the court stated that the right to informational privacy under Article 21 (right to protection of life and liberty) extends to the digital domain. The bench comprising Justice Sachin Datta laid down a framework governing when search engines and legal databases can be directed to de-index judicial records, while also identifying cases where relief would be available. It held, “In a society where digital records are virtually indelible, the ability to seek erasure ensures that informational self-determination remains effective. It protects individuals from perpetual exposure to past events that may no longer bear relevance, while preserving their dignity and autonomy.” What was the case? The petitioners, ranging from persons acquitted in criminal cases to parties in matrimonial disputes, argued that the internet search engine gives information a form of permanence. Allowing old allegations to remain accessible can continue to affect employment, reputation and personal dignity, they said. Google, Indian Kanoon (which hosts legal judgments), X Corp, and other intermediaries countered that they merely facilitate access to information already available in the public domain. Google described itself as functioning “analogous to a library index”. Media organisations argued that the removal of selective information would undermine transparency and “distort public memory”. What is the right to be forgotten? The right to be forgotten is not a standalone statutory right but understood as a facet of the broader right to privacy under Article 21. Explained | 10718942 The principle is that an individual should be able to control the use of their personal data, including demanding its removal when it no longer serves a legitimate purpose or causes disproportionate harm. Indian courts first engaged with privacy and public records in R. Rajagopal v. State of Tamil Nadu (1994), where the Supreme Court held that information forming part of public records could legitimately be reported by the press. The doctrine came up in the landmark case of K.S. Puttaswamy v. Union of India (2017), where a nine-judge bench held privacy as a fundamental right. Justice Sanjay Kishan Kaul, in his concurring opinion, said that “an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data/ information is no longer necessary.” What the Delhi HC held The respondents’ central argument was that judicial records are public documents, and that making them easily searchable is part of the principle of open justice. Once information comprises public records, they contended, the right to privacy no longer subsists. The court rejected that argument. It drew on the SC’s Sahara India Real Estate Corp v SEBI (2012), which held that open justice is “the cornerstone of our judicial system” and that “the right to open justice is not absolute.” Also in Explained | Experts Explain | Can Election Commission decide who is an Indian citizen? What Supreme Court said in SIR verdict Distinguishing judicial records and name-based digital searchability, the court held that “‘Open justice’ requires that judicial records exist, they be maintained; and they be accessible to those with a legitimate purpose.” What it cannot be extended to “is that a private individual’s name functions as a permanent and unlimited retrieval key, through a commercial search engine.” Section 79 of the Information Technology Act states that intermediaries are shielded from liability for third-party content so long as they exercise due diligence and act on court orders. The court stated that a search engine is not a passive conduit but rather an “active processor of data, which materially contributes to the invasion of informational privacy.” Algorithms can also amplify and continuously foreground information long after any legitimate public interest in it has faded. The court held that “An acquittal buried at the bottom of the ‘search results’, while the arrest dominates the search results, cannot be characterized as an ingredient of open justice.” When information can be removed The court carved out two distinct reliefs for individuals seeking to exercise the right. The first is de-indexing, which is a direction to a search engine or a legal database to remove a specific URL from name-based search results. The case judgment itself remains accessible by case number, citation or on the court website. For Indian Kanoon, name-based search functionality is to be disabled for those records while the records themselves remain intact. Masking, on the other hand, “is a directed to the court or the registry to replace a person’s name with a neutral reference in the publicly accessible digital version of the judgment, while preserving the unredacted version in the court’s internal records.” Petitioners who received de-indexing were separately given the liberty to approach the original court for masking. The court said that the framework for de-indexing must be examined on a case-by-case basis and identified three broad considerations. First, the outcome of the proceedings. Where a person has been acquitted, discharged or had proceedings quashed, the presumption of innocence requires it to be practically reflected in the digital domain. This would also apply to cases of settlement or compounding. Second, the public role of an individual. Public officials who occupy positions of influence are subjected to greater scrutiny in their public conduct. However, the court clarified that this does not automatically make every aspect of their private life a matter of public interest. Third, whether information remains relevant over time. The court also carved out two categories where de-indexing would not be granted — convictions for offences against women and children, and those involving breach of public trust, such as public servants and individuals holding fiduciary positions. Here, public interest in access to information outweighs privacy concerns. The court declined relief in two cases. A self-described public figure who sought the removal of content about past incidents of drunken behaviour was refused. “The right to be forgotten is not a mechanism for the selective erasure of past conduct by those who have voluntarily assumed a public identity,” the court said. The court also rejected the plea of a man convicted in the UK for blackmail and fraud and held that the right cannot be invoked to obscure criminal culpability where a conviction still stands. Issue before the SC After this court order, the SC is already examining related questions. In February, it stayed a Delhi HC order directing Indian Kanoon and The Indian Express digital to remove reports concerning a person discharged in an AgustaWestland-linked money-laundering case. The dispute stemmed from a defamation suit filed by a banker seeking removal and de-indexing of three news reports after he was discharged in a money laundering investigation. The reports were based on his comments, press releases of the Enforcement Directorate and court proceedings. A bench of Justices B V Nagarathna and Ujjal Bhuyan, however, clarified that the HC order “would not operate as a precedent”.