‘Right to be Forgotten’ in Indian Law
courts have yet not recognised the “right to be forgotten” under Indian law. However, there are good reasons to have one’s name dissociated from public records in the interests of privacy and similar concerns, as has been done in the context of victims of sexual assault. It is not an overarching right that should necessarily be available to all irrespective of context. In the absence of any privacy legislation, it is more likely to be a judicially developed remedy in specifi c cases.
A recent order of the Karnataka High Court prompted some news outlets to breathlessly claim that the high court had recognised the “right to be forgotten” (Shashiprasad 2017). Coupled with a case pending in the Delhi High Court that has sought such a declaration, it was presented as an innovation in Indian law (Mandhani 2017). This was an unfortunate misunderstanding of the order itself and the law in India. This column examines the debate around the right to be forgotten and whether it is something that should be upheld and enforced in Indian law.
The Karnataka High Court’s order is rather laconic and does not actually lay down any principle.1 The case has been filed by the father of a woman who had filed criminal and matrimonial cases against her husband and subsequently settled the same, continuing the relationship. It sought that the name of the woman be masked by the high court registry in the publicly available links on the internet to the orders in the litigation undertaken by the woman or her husband. This has been granted almost summarily and there is little or no discussion of any law or principles concerned.
The high court does conclude with a cursory summation of the law in “Western countries” in the context of the “right to be forgotten” in sensitive cases and offences against women. It is unclear from where the high court culls this principle and why it attributes it to “Western countries.” There being no serious dispute about the relief sought, it is not possible to say that the high court has laid down any principle or rule that such a request be granted as a matter of right.
This does not necessarily mean that Indian law rejects the right to haveone’s name dissociated from certain public records.
Two laws expressly mandate that names of certain persons will not be made public in any manner whatsoever: Section 228A of the Indian Penal Code (IPC), 1860 and Section 23 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
Section 228A of the IPC was introduced by the Criminal Law (Amendment) Act, 1983, which overhauled the laws in India on sexual offences. As it stands, Section 228A imposes a criminal liability on any person who publishes the identity of a victim of sexual assault. Unless authorisation is given by the investigating officer, the victim, or her family, in accordance with the procedure laid down in subsection 2, publishing her name can result in imprisonment of up to two years and a fine.
Section 23 of the POCSO Act also contains a similar provision. It criminalises the publication of the identity of any child which may affect the reputation or infringe the privacy of a child victim of sexual abuse. Unless specifically permitted by the special court trying the case, revealing the child’s identity in any manner can result in a jail term of between six months and a year, apart from a fine.
The rationale in both these laws rests on the harm that is caused to the victim of a crime of sexual assault by having the same discussed in public. Both laws look to protect the privacy and the reputation of the victims of sexual assault given the stigma visited upon the victims of this crime in Indian society. In its preamble, the POCSO Act recognises that protecting the privacy and confidentiality of a child in all stages of the judicial process is necessary for their proper development. Another underlying concern could also be the possibility that revealing the identity may affect the victim’s ability to give evidence in court, and thereby affecting the trial as well.
That said, the laws do not impose absolute bans on the publication of the identity of the victims. Interests of carrying out the criminal investigation and the child’s own interest may override the right to privacy, but there are enough procedural protections in place that give the victims or their representatives an opportunity to question the motive for overriding any privacy concerns. Section 228A also allows the victim or her kin to authorise a “welfare institution” or organisation to make the identity of the victim public.
The laws as they are drafted are not perfect by any means, and one glaring flaw is obvious in subsection 3 of Section 228A: the immunity from prosecution for those printing or publishing the high court or Supreme Court judgments. While this was intended to protect the law reports available mostly to a limited number of practising lawyers, it did not foresee the internet age where all the information concerning a case reproduced in a judgment is easily available through search engines. This problem is further aggravated by the carelessness (and occasionally, callousness) with which the appellate courts have revealed the names and identifiable details of the victims of sexual assault (Live Law 2015).
Recently, the underlying premise of the law has been challenged by victims and families themselves. The parents of the deceased victim in the Delhi gang rape of 2013 have insisted that the “Nirbhaya” science museum to be built in her name should be renamed after her actual name (Times of India 2017). Similarly, the victim of the Park Street gang rape, which took place in Kolkata in 2012, waived her anonymity in 2013 (Jha 2013). This is part of an effort to challenge the stigma surrounding victims of sexual assault. While this applies to adult female victims of sexual assault, it may not apply to minors who are not able to combat the unwanted publicity.
However, should the specific protections granted in these two laws be generalised to a wider set of people through the “right to be forgotten”?
Scope and Meaning
The basis for the “right to be forgotten” in the European Union (EU) has been drawn from provisions in the EU Charter related to data privacy and domestic laws of EU countries (Google Spain S L, Google Inc v Agencia Española de Protección de Datos, Mario Costeja González 2014). This has not been without criticism and there is vigorous debate going on about the right to be forgotten itself.2 Its conflict with the freedom of speech and expression has also been noted and the approach is very different on either side of the Atlantic (Rosen 2012).
This does not mean that a person does not have the right to protect her privacy and reputation in the public eye. It need not even be in extreme situations such as sexual assault. Matrimonial disputes might involve the revelation of very personal information to the court and get reproduced in a judgment that is widely and instantly accessible to anyone, and might even be the first result when one searches for a person’s name. This is the very cause of action that prompted the petitioner to approach the Delhi High Court in the “right to be forgotten” case currently being heard.
The flip side is the very real danger that this might be used by persons with power to suppress discussions of their misdeeds. A recent instance highlights the potential for such misuse: Rajya Sabha member Rajeev Chandrasekhar obtaining an ad interim ex parte injunction against the Wire for pointing out his conflicts of interest (Indian Express 2017).
The “right to be forgotten,” while it is an aspect of an individual’s privacy and reputation, cannot be discussed without understanding the possible repercussions on the freedom of speech. No doubt, limiting the amount of private information about an individual being available in the public domain is a pressing concern, but this needs to be balanced equally with the need to prevent people escaping consequences for their morally and legally dubious actions in the public eye. In the absence of any statutory framework to address this issue, the courts will continue to take stabs in the dark and fashion remedies as the situation demands.
1 Keeping in mind the order itself, the cause title and number are not available. However, the full text of the operative parts of the order is available (Bhattacharya 2017).
2 For the argument against the “Right to be Forgotten,” see Tessa Mayes (2011).
Bhattacharya, Arunima (2017): “In a First An Indian Court Uphlods the Right to be Forgotten,” Live Law, 3 February, http://www.livelaw.in/first-indian-court-upholds-right-forgotten-read-order/.
Google, Spain S L, Google Inc v Agencia Española de Protección de Datos, Mario Costeja González (2014): C-131/12, European Court of Justice’s decision dated 13 May, http://curia.europa.eu/juris/document/document_print.jsf?doclang= EN&docid= 152065.
Indian Express (2017): “Rajeev Chandrasekhar Gets Injunction to Remove 2 Articles from News Portal,” 10 March, http://indianexpress.com/article/india/rajeev-chandrasekhar-gets-injunction-to-remove-2-articles-from-news-portal- 4562855/.
Jha, Rupa (2013): “Why an India Rape VictimDisclosed Her Identity,” BBC News, 22 June, http://timesofindia.indiatimes.com/city/delhi/parents-want-nirbhayas-real-name-for-museum/articleshow/57174172.cms.
Live Law (2015): “SC Again Violates Privacy of a Rape Victim; Mentions Her Name and Age: Ironically, Voices Concern Over Violence against Women!,” 18 February, http://www.livelaw.in/breaking-sc-violates-privacy-rape-victim-mentions-name-age-ironically-voices-concern-violence-women/.
Mandhani, Apoorva (2017): “Delhi HC Hearing NRI’s Plea For ‘Right To Be Forgotten,’” Live Law, 5 February, http://www.livelaw.in/delhi-hc-hearing-nris-plea-right-forgotten-read-petition/.
Mayes, Tessa (2011): “We Have No Right to be Forgotten Online,” Guardian, 18 March, https://www.theguardian.com/commentisfree/libertycentral/2011/mar/18/forgotten-online-european-union-law-internet.
Rosen, Jeffrey (2012): “The Right to be Forgotten,” Stanford Law Review, 13 February, https://www.stanfordlawreview.org/online/privacy-paradox-the-right-to-be-forgotten/.
Shashiprasad, S M (2017): “Karnataka High Court Upholds Woman’s ‘Right to be Forgotten,’” Deccan Chronical, 30 January, http://www.deccanchronicle.com/nation/current-affairs/300117/karnataka-high-court-upholds-womans-right-to-be-forgotten.html.
Times of India (2017): “Parents Want Nirbhaya’s Real Name for Museum,” 15 February, http://timesofindia.indiatimes.com/city/delhi/parents-want-nirbhayas-rea....
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