Delhi High Court Judges Endorse 'Right To Be Forgotten' But Flag Gaps In Its Enforcement

Three Delhi High Court judges- Justice Mini Pushkarna, Justice Anish Dayal and Justice Tejas Karia on Tuesday spoke about the significance of the Right to be Forgotten in the digital era, emphasising that while the said right is important, every matter has to be adjudicated on a case to case basis and its facts.

The judges were speaking at the 50th Legal Discussion organised by “Tuesday Group” on the topic “Right to be forgotten in digital era: Balancing privacy, public interest and freedom of expression.”

Right to be forgotten and privacy is not luxury: Justice Mini Pushkarna

While referring to various cases on the subject, Justice Mini Pushkarna said that right to be forgotten should not be construed as the right to hide or to think that every past action deserves to be vanished.

“There are people who seek the right to be forgotten who are trying to protect their own children,” said the judge while referring to one of her rulings in the case of Sadanand & Anr. v. CBSE wherein she held that the right to identity is an intrinsic part of Article 21 of the Constitution of India and that it is permissible for an individual to change his or her surname, to not be able to be identified with any particular caste “that may be a cause of prejudice” to such person.

“There are different aspects of right to be forgotten. This right to be forgotten is not to be seen as a luxury but it is a right… sometimes we know people need it to protect their own lives so that they can move forward in life and live their life in the present and not remain stuck in the past,” she said.

The judge further said that when a person gets acquitted in a case and the court says “ba-izzat-bari”, it means acquitted with honour.

“It is the duty on all of us that we help the person to provide honour the individual deserves and further his cause to forget the thing which was never intended to be done….Privacy should not be luxury. To live with dignity should not be a luxury. Right to be forgotten is not a luxury,” she said.

Asking for taking down of judgment is a very harsh remedy: Justice Anish Dayal

Justice Dayal began his address by referring to the concept of “digital immortality”, while adding that it is the basis of where the cause of action starts.

“Once you are on the internet, once you are on cyberspace… ironically almost every one of you in this room, we want not to be forgotten. Think about it. We use Instagram, Facebook, Reels. We are putting out so much of data every day all the time, consciously or unconsciously through apps and platforms. And then we are looking at the serious issue of right to be forgotten. Who wants to be forgotten?,” he said.

The judge emphasised on three larger aspects concerning the right to be forgotten- one, where one wants to put the data back from some data collector; second, courts “who are the biggest data collectors” and third, intermediaries.

On the issue of where the right to be forgotten emanates from, Justice Dayal referred to Section 12 of the Digital Personal Data Protection Act, 2023, which deals with the right to correction and erasure of personal information.

“The right of erasure forms a sub set of the larger right to be forgotten where you want to completely want to remove your details…,” he said.

The judge also talked about the concept of open justice or open courts system vs. the right to be forgotten. Referring to Kerala High Court ruling in Vysakh K.G. v. Union of India, he said:

“When you come to the court saying please erase my name or reference, it would come in various variations. One you ask for takedown of the judgment which is a very harsh remedy, which directly conflicts with open court system. Other is anonymisation or redaction…”

Removal of data different from right to be forgotten: Justice Karia

In his address, Justice Karia said that the right to access information was not that easy earlier and that “we would not have to worry too much” unless there was internet or a digital footprint.

“Access to information has become very easy. With artificial intelligence, it is more easy. Even if you leave one information on the internet, AI will find it and provide information about it,” he said.

The judge lamented that there are two aspects of the right to be forgotten where- one, digital and technical aspect and second, legal aspect.

Emphasising that removal of data is different from the right to be forgotten, he said that the right in question is a very wide right in which no one should know about the fact or data of an individual out in the public.

“We see ourselves to be noticed by people at large but we don't want them to remember what we did in the past. Who will decide this?… till date we only have judgments,” he said.

The judge said that till date there is no authoritative judgment from the Supreme Court or a statute which recognizes the right to be forgotten and what we have is only Section 12 of the 2023 Act which also only talks about right of erasure of data.

“It is a sub set of right to be forgotten. Because right to be forgotten is a bigger concept. There is no technology now which could remove all the references of data on the internet. Internet is a vert wide dataset,” he said.

Justice Karia referred to IndianKanoon to give an example of when information is published on a platform by a third party and there is a right of someone who has not put the data.

“If you have put the data on the internet, you can delete it yourself. But the problem is when a third party puts the data and you want it to be deleted.… The right to be forgotten is not a codified right. The question which comes is that decision has to be made by the authority which we don't have in place as of now,” he said.

Virality of content a challenge to enforceability of Right to be forgotten: Justice Karia

Justice Karia then said that it is a challenge to remove each aspect of an information which goes out on the internet, while adding that in some cases the problem is also the virality of the content.

“It is not that the content is with one platform or a search engine. Even if you remove it from one place, it can be somewhere else. Even if court passes an order, it can only be done on its own source. If it is shared on other platforms….another issue is also about enforceability of right,” the judge said.

Further, Justice Karia said that what is mentioned in the 2023 Act is not the right to be forgotten but only the right of erasure of information.

“Right to be forgotten is an important right because it is very much akin to the right to life and right to live with dignity. In some case to case basis, court can take a view. Once Rules will be framed, we will se how Section 12 (of 2023 Act) will be unfolded,” he said.

The discussion was also attended by Senior Advocate N Hariharan, President of Delhi High Court Bar Association, who also spoke on the issue in detail.

The coordinators of the event are: Advocates Zeba Khair, Iram Majid, Suneita Ojha, Mishika Singh, Sitwat Nabi, Rekha Saroha, Harshita Sinhal and Arjun Sharma.