J_92_NLIU_LR_2020_396_achintyabanerjee_yahoocoin_20241117_014035_1_14

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9.2 NLIU LR (2020) 396
Unattainable Balances : The Right to be Forgotten
UNATTAINABLE BALANCES : THE RIGHT TO BE FORGOTTEN

by
Harikartik Ramesh and Kali Srikari Kancherla*
ABSTRACT
Recently, adopting the recommendation of the Sri Krishna Committee Report,
the Draft Data Protection Bill, 2018 incorporated a provision for the ‘right to be
forgotten’ under Section 27 (Section 20 in the 2019 Draft). The right to be
forgotten refers to the right a person holds against data fiduciaries such as Google
and others, to delete, mask, or hide information pertaining to the person which is
incorrect, irrelevant and defamatory in nature. This right has been of much interest
especially in the age of the internet, where internet users leave a massive digital
footprint behind every time they access the internet. This means that a person can
now create a comprehensive profile about another individual within seconds by
using the information which exists on social media and other platforms. Some of
this information available online could be extremely personal with the potential of
damaging a person's reputation. It is, therefore, essential to examine the
applicability and suitability of such a right in the Indian context.
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The right to be forgotten, by its very nature, falls in the crossroads between the
right of speech and expression and the right to privacy. It is therefore essential for
these two rights to be balanced for the operation of the right to be forgotten. This
paper shall discuss the balancing of the two rights, i.e., the right of speech and
expression and the right to privacy and will demonstrate how such a balancing would
not fit into India's constitutional scheme and free speech jurisprudence. Given that
India takes inspiration for the implementation of this right from Europe, the paper will
also highlight the difference in constitutional approaches in Europe and India to
demonstrate that the suitability of the right in Europe does not necessarily imply that
its operation in India would be suitable.
I. INTRODUCTION TO THE RIGHT TO BE FORGOTTEN
The right to be forgotten, as it exists at present after its evolution over the years,
seeks to mitigate against the seemingly permanent nature of information on the
internet. Individuals were suffering from outdated and irrelevant information still
existing on the internet. The easy accessibility of such information caused severe
damage to a person's reputation and right to privacy.1 The right to be forgotten
effectively causes information to be more difficult to find and it is, therefore, a form of
forced omission. It allows for individuals to control and
Page: 398
determine the extent of the information about them that is communicated to others
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and available for the public's perusal.2
Most famously, under the French Law, there existed an analogous right known as
the ‘Right to Oblivion’ which allowed for criminals to expunge their past criminal
record. In Germany there was an analogous law regarding previous criminal
convictions. This right afforded a much larger protection and German courts even
asked Wikipedia to take down information regarding the prior criminal record of the
appellants as it was detrimental to their right to reputation.3
The European Union Data Protection Directive 95/464 and the 2000/31/EC Directive
on E-Commerce in the Common Market5 together created an obligation upon
intermediaries to ensure that the rights of individuals were not infringed and domestic
jurisdictions were given the power to ensure that intermediaries fulfilled this
obligation. These directives were the bedrock upon which the landmark judgement of
Google Spain v. AEPD (“Google Spain”) was delivered.6
Mario Costejas raised a complaint to the Spanish Data Protection Agency (“AEPD”)
regarding an article published in La Vanguardia, a newspaper, relating to an
attachment proceeding in a real-estate auction against him and recovery of social-
security debts. Costejas requested that the newspaper either remove and alter the
pages or that Google Spain alter the pages to conceal the personal data in search
results. The AEPD refused to the former request but agreed to the latter. Google
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objected to the decision and the case landed up in the European Court of Justice
(“ECJ”).7
The Court held that the right to be forgotten could be found within the Directives, in
particular, Article 12(b) and Article 14(a) which provides for data controllers to rectify,
erase and block data which did not comply with the Directive.8 The Court also held
that Google satisfied the requirements of a ‘data controller’ as the search results are
not automatic, i.e., Google delivers the information and sculpts the results.9 Thus, it is
not just a mere conduit with information passing through, rather the algorithm and
data have a much deeper level of interaction. The Court also recognised that when
search engines processed personal data, the right to privacy is attracted since several
aspects of a person's private life can be revealed with a simple name search, without
search engines having to piece together the data.10
This case became the holding judgement regarding the right to be forgotten. In the
revised General Data Protection Resolution (“GDPR”), the EU has explicitly included a
right to be forgotten within its ambit,11 which is a clear approval and effect of the
Google Spain judgement of the ECJ.
The judgement was deeply divisive. While several countries welcomed the
uncovering of the right to be forgotten, the House of Lords was deeply apprehensive
about the judgement. The House described the right to be forgotten as unworkable,
unreasonable and wrong.12 They
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were worried about the impracticability of the judgement given the sheer volume of
requests to correct information that would arise, which a search engine operator like
Google would have to individually analyse on merits.13 They estimated that it would
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have an economic cost of 360 Million Pounds and were, therefore, worried about the
implementation of the right.14
Despite the divisive nature of the judgement, several countries have begun to enact
legislations with reference to the right to be forgotten in an effort to follow suit of the
European Union and better protect the rights of their citizens.15 India, too, is one of
these jurisdictions attempting to incorporate this right. The discussion around this
right was sparked following Justice Kaul's opinion in the landmark Puttuswamy
judgement16 on privacy and the report of the Sri Krishna Committee17 which
recommended the incorporation of statutory provision regarding this right within the
Draft Data Protection Bill 2018,18 and was reproduced similarly in the bill introduced in
Lok Sabha in 2019.19 However, as will be discussed in the subsequent sections of this
paper, the incorporation of such a right will be contentious due to Indian jurisprudence
on balancing of rights.
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II. BALANCING THE RIGHTS

The right to be forgotten is of such nature that it necessarily sits at the cross roads
of the freedom of speech and expression and right to privacy or/and reputation.20 In
the EU, the balancing of these two rights is possible as Article 11 of the Charter of the
European Union, which is analogous to Article 10 of the European Convention on
Human Rights,21 notes that ‘rights of others’ is a valid ground of restriction of
expression. However, this is to be distinguished from the Indian Constitution where
Article 19(2), that provides for reasonable restriction on the freedom of speech and
expression, does not list the ‘rights of others’ as a reasonable restriction. Due to the
manner in which fundamental rights are structured in Part III of the Indian
Constitution (especially the freedom of speech and expression), there are several
problems that arise with the implementation of the right to be forgotten in the Indian
jurisdiction.
Section 20(2) of the 2019 Draft Protection Bill reads
“(2) The rights under sub-section (1) may be enforced only on an order of the
Adjudicating Officer made on an application filed by the data principal, in such form
and manner as may be prescribed, on any of the grounds specified under clauses
(a), (b) or clause (c) of that sub-section:
Provided that no order shall be made under this sub-section unless it is shown
by the data principal that his right or interest in preventing or restricting the
continued disclosure of his personal data overrides
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the right to freedom of speech and expression and the right to information of any
other citizen.”22
The provision clearly states that the interests of person aggrieved can override the
freedom of speech and expression as well as the right to information of other citizens.
This clearly highlights the fact that the framers of the Bill believe that the freedom of
speech and expression can be balanced with the rights of another person. However, as
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will be explained in this section of the article, this would be constitutionally untenable
due to the doctrinal inconsistency resulting from such a reading and engaging in the
same would go against the very basic norms of Indian free speech jurisprudence.
A. Textual Case against Balancing Freedom of Speech and Expression with other
Fundamental Rights
Part III of the Indian Constitution does not explicitly prescribe a hierarchy of rights.
Rather, on face value, all the rights are considered to be equal and a conflict between
any two fundamental rights is meant to be resolved by way of harmonious
interpretation.23 This would appear to support the case for balancing of freedom of
speech and expression with the right to reputation and privacy. However, a closer
examination of the proposition reveals that it would be fallacious to assume that
Article 19(1)(a) can be balanced with other provisions of the Constitution.
The Constitution does not prescribe any guide regarding balancing of rights and
only some of the rights prescribed in Part III are limited by other provisions of the
Constitution. For instance, Article 25 which provides for the freedom of religion is
“subject to public order, morality and health and to the other provisions of this Part.”
Simply put, an individual's use of their freedom under Article 25 cannot violate
Page: 403
the rights of another person, for example their right to equality under Article 14 and
prohibition of ‘untouchability’ under Article 17.24
This is not as obvious and simple with the other fundamental rights. For instance,
for the purpose of the question at hand, Article 19(2) does not use the phrase “subject
to other provisions of this part.” Therefore, as per textual reading of the Constitution,
another person's rights under Article 21 (such as a right to privacy), cannot be the
reason for restricting an individual's freedom of speech and expression under Article
19.
The fact that Article 25 specifically uses the phrase “subject to… other provisions of
this Part” shows that where the framers wished to communicate a right being subject
to other fundamental rights, they have explicitly mentioned the same. This shows that
the right provided under Article 19(1)(a) was not supposed to be subjected to
balancing tests and was to be upheld even if it affected another's fundamental rights.
Therefore, the right of others cannot be the basis for the restriction of a person's
fundamental right to speech and expression.25
B. The Judiciary on Balancing of Rights
The right under Article 19(1)(a) is subject to reasonable restrictions under Article
19(2). Under 19(2), the framers of the Constitution have specifically enumerated
definite heads for the restriction of the right to free speech and expression. As these
heads are within a closed list, there is no space for interpreting other provisions of the
Constitution as another limiting factor on the exercise of this right.26 However, the
Page: 404
Indian judiciary has failed to be consistent regarding balancing of the freedom of

speech and expression with other rights and has been unable to arrive at a final
concrete decision so far.
The first important case where the court said that the right to freedom of speech
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and expression could not be balanced against any interests that have been not
enumerated in Article 19(2) was the landmark case of Sakal Papers v. Union of India
(“Sakal Papers”).27 Here, the court invalidated the Newspaper (Price and Page) Act,
1956 and the Daily Newspapers (Price and Page) Order, 1960 which regulated the
prices publishers could charge for newspapers based on page count and the amount of
content. The government justified the Act and Order on the grounds of it being in the
interest of smaller paper publishers by encouraging them to compete with the large
publications. It also contended that this would curtail unfair competition which would
in turn further public interest. The Supreme Court clearly ruled that the government
could not suppress speech even if it was on grounds of ‘public interest.’28
This was reiterated by the Supreme Court in Indian Express v. Union of India,29
where it was once again noted that the framers of the Constitution had made a
conscious choice to exclude ‘public interest’ from the list of reasonable restrictions
under Article 19(2) and to read ‘public interest’ into the article would defeat the choice
made by framers.
With respect to public interest, the court regularly and consistently has held that
public interest cannot be the basis of suppression due to it not being mentioned as a
ground under Article 19(2) of the Constitution. However, the moment that the
freedom of speech and expression is set up against another fundamental right, in this
instance, the right to
Page: 405
privacy and reputation, the court is unable to follow its own doctrine. In such cases, it
adopts balancing as its preferred method despite there being no textual basis in the
Constitution for the same, as shown above.30
There are two cases in particular where the Supreme Court failed to follow its own
reasoning regarding Article 19(2) being a closed list. These two cases are the
judgements of the Supreme Court in In Re : Noise Pollution and Subramaniam Swamy
v. Union of India (“In Re : Noise Pollution”).
In Re : Noise Pollution31 the Supreme Court was hearing a PIL regarding
implementation of laws regulating loudspeakers, firecrackers and playing loud music,
etc. and ruled that post 10 p.m., without permit, nobody would be allowed to engage
in these activities. The route it took to reach this conclusion was that Article 19(2) was
not absolute and could not override the right to life under Article 21, which included
the right to be in a peaceful, comfortable, pollution free environment. The court on
engaging a vague balancing test ruled that they were giving more weight to Article 21.
This reasoning was surprising as the question in front of the court did not require the
court to resort to Article 19(2) at all. This is because the list under Article 19(2)
contains content-based restrictions while what was being challenged in front of the
court in this case was a content-neutral restriction which was along the lines of a time,
place and manner restriction (where the restriction was based on procedure of
expression rather than the content of expression). There was thus no reason for the
court to conjure up a balancing test for which it gave no explanation as to why the test
was
Page: 406
adopted in the first place. Therefore, this case does not prove that the balancing test is
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doctrinally sound.32
The second important case is the infamous judgement of Subramaniam Swamy v.

Union of India.33 While upholding the constitutionality of criminal defamation, the
court showed that there was a right to reputation under Article 21 and that Article 19
(1)(a)'s freedom of speech and expression had to be balanced with the said right
because to do otherwise would be to ‘sacrifice reputation at the altar of free speech.’ It
further explained how freedom of speech and expression was not absolute. Here, the
court, while citing In Re : Noise Pollution again carried out a vague balancing exercise,
which as explained previously was flawed. The court once again utilised the balancing
test without having provided any doctrinal justification for doing so.34
It is observed that the court reiterates the principle of freedom of speech and
expression not being absolute even when it is not relevant to the contention before
them. The court had proceeded with formulating new restrictions to the freedom of
speech and expression, while ignoring the closed list under Article 19(2). They failed
to note that they did not have to involve Article 19(2) at all, like in the Noise Pollution
case and that the framers intentionally left out such a restriction because they did not
wish to subject this freedom to societal values and will.35 The Court should have noted
its reasoning in Sakal Papers and immediately avoid
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such balancing the moment Article 19(2) is considered to be a closed and exhaustive
list.
At this point it should be noted that opponents to the premise that balancing of
rights is not contemplated by Article 19(1)(a) may argue that the Supreme Court had
subjected Article 19(1)(a) to other provisions of the constitution in the past, in
particular, in the judgement of Sharma v. Sri Krishna.36 The case dealt with a MLA
making an offensive speech in parliament which was expunged from the record by the
speaker. However, a newspaper published the speech in its entirety including the
derogatory and offensive parts of the speech. The speaker, exercising powers under
Article 194(3) of the Constitution, which protected privileges of parliament, served a
show cause notice against the publisher with regard to the breach of parliamentary
privilege. The Supreme Court when deciding the case held that the privilege of the
house to prevent publication under Article 194(3) would override Article 19(1)(a),
despite privileges not being mentioned as a ground of restriction.37 However, this case
has no relevance as in reaching the verdict, the majority had held Article 194(3) to be
a special provision which would prevail over the general provision of Article 19(1)(a).
In the instance of the right to be forgotten, the other general provisions of Part III of
the Constitution are pitted against each other. Further, scholars have criticised this
judgement for its holding and argued that the privileges allowed by Article 194(3)
should have been subject to limitations of Article 19(2).38
Once it is correctly understood that the balancing test is doctrinally and textually
unsound with respect to Article 19(1)(a) and Article 19(2), it becomes difficult to
justify the existence of the right to be forgotten, given that this right, as stated earlier,
necessitates a balancing act
Page: 408
between freedom of speech and expression and right to privacy/reputation of the

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individual.
Therefore, Clause 20(2) of the Draft Protection Bill would have to specifically note or
courts will have to interpret Clause 20(2) as meaning only those rights that the data
principal seeks to claim that can be related back to any of the heads of restriction
prescribed by Article 19(2). This would severely limit the scope of the right to be
forgotten and is not how the framers of the Bill have envisioned it. This is evident from
the comparisons made to the extensive and vast nature of this right provided by the
European Union which demonstrates a clear intention to emulate those protections.
Therefore, if the framers wish to justify the status-quo, they would have to prove
that the right to be forgotten in its current state would fit within the reasonable
restrictions laid down in Article 19(2). The next part of the paper shall demonstrate
that such an argument is fallacious and not grounded in sound constitutional
interpretation.
C. Incompatibility of the Right to be Forgotten within Defamation
Article 19(2), the limiting clause of article 19(1)(a) reads—
“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub-clause
in the interests of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency or morality, or in
relation to contempt of court, defamation or incitement to an offence.”
As discussed in the previous sections, the important part of jurisprudence of this
Article is that the list of heads that it provides to restrict the freedom of speech and
expression is exhaustive and the
Page: 409
same does not allow for a general public interest justification.39 Therefore, any
restriction on the freedom must squarely fall under at least one of the heads provided
in this Article.
The right to be forgotten as described in the draft Data Protection Bill poses a
problem as it is difficult to fit the right to be forgotten neatly within any of the heads
given in Article 19(2). The head that comes the closest to justifying the right to be
forgotten is defamation, as both of these concepts have a link to the idea of the right
to reputation.
However, there is a problem with justifying the right to be forgotten using the head
of defamation because the right to be forgotten far exceeds what has always been
understood as defamatory content. This is clear from a reading of Section 20 of the
Draft Data Protection Bill, which includes information which is deemed to have ‘served
the purpose for which it was made and is no longer necessary’ under its ambit.40 There
is no mention of the requirement of the information being inaccurate which is sine qua
non for defamation.41 The common connection between all definitions of defamation is
that the information is false, therefore leading to a loss of reputation. From what can
be seen, in the right to be forgotten even accurate information, which has merely been
rendered irrelevant by the passage of time may be prevented from being disclosed.
Therefore, the ambit of defamation is not large enough to be stretched to include the
right to be forgotten as well.
An argument that may be made in defence of the right to be forgotten is that the
term defamation should be interpreted to mean the right to reputation, therefore, the
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right to be forgotten would be covered by the term defamation due to their shared
concept of right to reputation. This
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would be untenable as defamation has a very specific meaning, which as stated above,
is intrinsically connected with the concept of falsity of information and this cannot be
stretched in meaning to be synonymous with the right to reputation. Even if we keep
the intention of the framers to one side and wish to interpret the word, there are limits
to which we can remove the meaning of defamation from its original mooring, as the
ingredients of defamation will have to be preserved. Seervai noted that it would not be
within the power of the legislature to make a law of defamation providing that truth
would not be a defence.42 Therefore even if we were to ignore the intention of framers,
the essential ingredients of defamation would constrain us from including the right to
be forgotten within its ambit.
The key difficulty is that if the right to reputation was a reasonable restriction, then
a person accurately reporting a story which negatively affected another's reputation
could also have their freedom of speech and expression interfered with. The Supreme
Court in Subramaniam Swamy v. Union of India43 also noted that a reading of the
constituent assembly debates and previous court decisions showed that the meaning
of defamation in the constitution should be understood as the common law
understanding of defamation.44
Therefore, the right to be forgotten would not survive a test of constitutionality
since the right to be forgotten does not fit within any of the heads prescribed by
Article 19(2).
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III. THE SRI KRISHNA COMMITTEE REPORT AND WHITE PAPER

This section shall discuss the failings of the Sri Krishna Committee and the Indian
judiciary to provide doctrinal soundness to the balancing of the right to free speech
and expression with the right to privacy.
Given the difficulties regarding the constitutionality of the scheme of the right to be
forgotten as highlighted previously, both the White Paper on Data Protection and the
Sri Krishna Committee Report should have addressed these issues within their policy
documents.
The two documents, especially the White Paper on Data Protection hint that the
inspiration behind the inclusion of the right to be forgotten was the GDPR. The White
Paper discusses the right to be forgotten in the European Union and in its Provisional
Views and also specifically discusses the judgement in Google Spain. The White Paper
also looks at the examples of Canada and South Africa and their legislations regarding
personal data protection.45 These international practices were highlighted to
demonstrate the need for the right to be forgotten.
The Sri Krishna Committee Report lays down the guidelines, which are mentioned in
the Draft Bill, for the adjudicatory body to follow when it seeks to balance the two
rights. These guidelines have been lifted from European Court of Human Rights
decisions and reports by Google in the aftermath of the Google Spain decision.46
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Both these documents heavily stress on the need for balancing of rights when
dealing with the right to be forgotten. In the White Paper, the Committee notes that
“[T]he right to be forgotten should be designed
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in such a manner that it adequately balances the right to freedom of speech and
expression with the right to privacy.”47 While in the final report the Committee
dedicates an entire section to the balancing of rights involved and notes that the
freedom of speech and expression should be considered when discussing right to be
forgotten, the solution they provided was by inserting a statutory balancing test.48 The
Committee justifies this balancing test by stating that “[T]he Supreme Court of India,
when faced with a question of competing rights, has laid down a well-established test
on how to adjudicate such a question on its merit”, while citing the case of Mr X. v.
Hospital Z.49 The facts of this case are that a person who was diagnosed of HIV had his
HIV positive status revealed to his fiancé by his doctor, without his consent. The
Supreme Court had noted that as the fiancé was at a risk of contracting the disease
through sexual contact with the husband, the doctor was not wrong in disclosing the
condition of the husband to her. The citing of this case is not very helpful as the case
can be easily distinguished from situations where the right to be forgotten is in
question. In this case, the rights which ostensibly were being balanced were the right
to marriage of the appellant and the right to health of the fiancé and Article 19 of the
Constitution was not attracted at all. Further, in this judgement, the Supreme Court
did not discuss balancing of rights in any manner whatsoever.
The two reports have not clearly justified the presence of the balancing test in the
face of the concerns regarding the constitutional invalidity of the doctrine in Indian
jurisprudence. The Committee has erred by using European jurisprudence and directly
applying it to the Indian scenario. This is because under the Convention of European
Human Rights, the possible limitations of the freedom of expression under Article 10
include ‘the right of others’, meaning thereby that there is
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no justification required for the very use of the balancing test in those jurisdictions.
This is unlike the aforementioned closed box nature of limitations in Article 19(2) of
the Indian Constitution. Therefore, these two policy documents are wholly
unsatisfactory in their design of the right to be forgotten as they have not clearly
answered the preliminary questions posed against the implementation of the right to
be forgotten in India.
IV. INDIAN JUDICIARY ON THE RIGHT TO BE FORGOTTEN

It has been argued that the right to be forgotten was embodied in the spirit of
Indian law even though it was not explicitly stated as such.50 The Supreme Court in
the past has stressed on the need for the name of the victim to not be published in
order for their anonymity to be preserved. In these cases, the courts were focussing
specifically on rape victims.51 The court's reasoning was based on the fact that Section
228-A of the Penal Code, 1860 criminalised the disclosing and publishing of the
identity of a rape-victims to prevent the ostracization faced by the survivor and their
families. These judgements make no reference to a right to be forgotten as the courts
were urging other judicial bodies to deter from naming the victims in the first place.
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The right to be forgotten was affirmed as not merely a common law right but as a
part and parcel of the right to life under Article 21, as per Justice Kaul's concurring
opinion in the K. S. Puttuswamy52 judgement.
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Justice Kaul noted that the right to be forgotten is an integral facet of the right to
privacy in the modern age and drew upon European Union jurisprudence on the
subject. Justice Kaul noted that the right to be forgotten is required in the modern age
of the internet, where data mining is a budding industry, as it is a method by which
individuals can regain control of the information they have put out into the public
sphere. As per the learned judge, the right to control one's life would also extend to
controlling one's internet existence.53
A trend which we shall notice with the judiciary can be seen in the learned judge's
opinion, as at no point was the balancing of rights which is essential for the operation
of the right to be forgotten noted. The right is spoken of in isolation without
recognising that citing European jurisprudence would be inappropriate in the Indian
scenario as noted in this paper previously.
There have been a handful of High Court judgements which have reached
contradictory opinions with respect to the existence of the right to be forgotten before
the Draft Data Protection Bill was enacted.
One of the first cases to crop up with regard to the right to be forgotten was the
case of Dhamraj Bhanushankar Dave v. State of Gujrat54 where a man who had been
charged with murder was subsequently acquitted by the Sessions and High Court.
However, despite being listed as an unreportable judgement, India Kanoon received
access to the judgement resulting in it being indexed in Google. The man pleaded for
the taking down of the links and limiting the access to the judgement. Since the case
arose back in 2015, much before the Data Protection Bill Draft was circulated or the
Puttuswamy judgement had arrived, Gujarat High Court noted that there was no
statutory
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provisions or law available on the matter. There was no scope or guidance available to
the High Court to grant the request as at the time, the status of privacy as a
fundamental right was itself under doubt, and added to that, data privacy was not
discussed in any manner. Thus, the High Court noted that Article 21 would not be
attracted and refused to compel Google to remove the search results. In contrast, the
Kerala High Court used the right to order India Kanoon to remove the name of a victim
of rape from their search engine in order to protect her right to privacy.55 However, it
should be noted that in this instance, there is a law punishing the publishing of the
name of a victim of rape under 228A of the Penal Code, 1860.
In Vasunathan v. Registrar General,56 the petitioner's daughter had filed civil and
criminal cases against a person and later withdrew the case as the parties to the cases
reached a compromise. However, when using the daughter's name as the keyword for
a search on a search engine, the complaints were available. The petitioner, therefore,
requested the search engine operators to remove the links to these complaints as it
could cause problems to the daughter. The court agreed to do so and stated that in
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western countries, in cases where a women's modesty was involved, the application of
the right to be forgotten would be allowed. However, this is problematic as it did not
locate the right to be forgotten in privacy but rather within the concept of woman's
modesty which has been challenged by many, including the Justice Verma Committee,
as the incorrect way to approach questions of violation of dignity of women.57 If the
court had to pass such an
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order, it should have located the right squarely within privacy and not the ambiguous
and problematic notion of modesty.
Recently, in the Delhi High Court, in the context of the #MeToo movement, the
plaintiff requested the defendant to take down articles where the plaintiff was alleged
to have committed sexual harassment. While the suit was in pendency regarding the
mental torture caused to the plaintiff by publishing of the articles, the plaintiff
requested that the articles be pulled down in the interim period from all platforms. The
Court agreed to the request of the plaintiff and allowed the plaintiff to compel search
engine operators to delink the articles about the allegations present on other
platforms.58 It is not clear as to why the court did not use existing defamation law
parameters while dealing with the issue, as the basis of the claim was that of a falsity
which caused injury to reputation. There was no balancing of rights done by the court
as the defendants had already agreed to taking down the articles.
In Subodh Gupta v. HerdScene,59 the artist Subodh Gupta had filed a defamation
suit against an anonymous Instagram account for making certain sexual harassment
allegations against him and in the interim wished for search engine operators to delink
the search results regarding the sexual harassment charges. The Delhi High Court
agreed to the request noting that since none of the survivors of the alleged
harassment had taken legal recourse, making allegations of such nature would lead to
mischief. Similarly, as in the previous cases, the court failed to balance rights in this
instance. If the court proceeded to balance rights it could have noted that allegations
of sexual harassment made anonymously occur due to a of fear of retribution.
Anonymous allegations are often the only recourse for survivors, due to the judicial
system's harshness and the discomfort and harm caused to their lives
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by deciding to opt for a legal recourse.60 If the court had considered these factors it
perhaps would not have so readily granted the request for delinking. The court, here,
failed to take note of the right to impart knowledge which is central to the freedom of
speech and expression.
It is clear from a perusal of the above judgements that the cardinal mistake being
committed in these cases is that privacy is being looked at in isolation without
reviewing the freedom to speech and expression aspect. The right to be forgotten is
conceptualised as a test of balancing, if one entire side of the balancing is ignored, the
results shall be lopsided. Therefore, the right to be forgotten cannot be applied without
balancing. Even if such balancing has been done, the court will have to give a doctrinal
base to the balancing given that as it currently stands, it does not fit within the Indian
free speech jurisprudence.
In the cases regarding the removal of judgements, the High Courts have failed to
-----------------------------------------------------------------------------------------------------------------------------------------------------------
take note of the right to receive information, which the Supreme Court has held is part
of the scheme of rights guaranteed by Article 19(2).61 The courts must take note of
the competing right as without it, the right to be forgotten can become a powerful tool
for judicially compelled censorship.
V. CONCLUSION
The right to be forgotten, in theory, may seem to be an attractive avenue to expand
the rights of people by giving internet users a modicum of control over the information
they impart on the internet. However,
Page: 418
before implementing the right in the Indian context, the framers of the Draft
Protection Bill and the judges of various High Courts should have taken note of the
difference between free speech jurisprudence in Europe and India as they are not truly
analogous.
The Supreme Court must also show clarity with respect to the doctrine of balancing
of rights as it cannot contend that while Article 19(2) is a closed list, the right of other
can be read into the provision. Balancing a right with others without grounding such
balancing within one of the listed grounds in the Article is therefore impossible. The
Supreme Court may no longer have to strictly abide by the framer's intent; however,
they cannot completely read into the provision a completely new ground for restricting
expression. If it wishes to do so, it cannot hold onto the notion that Article 19(2) is a
closed list, but the court has in no way changed its interpretation of the Article. It
truly is a case of the court wishing to eat its cake and have it too.
It is admirable that the policy makers of the country wish to take a step forward
with regard to data rights. However, before taking this step, they must ensure that
they remain on firm ground, otherwise, they run the risk of being caught in a
quicksand of confusion and litigation which will only serve to detract away from the
evolution in rights which was envisioned.
———
* Students at National Law University, Delhi.
1 Michael J Kelly & David Sataola, The Right to be Forgotten, 1 UNIV. OF ILL. L. REV. 3 (2017).
2
ARTICLE 19, THE RIGHT TO BE FORGOTTEN : REMEMBERING FREEDOM OF EXPRESSION 1 (2016),
https://www.article19.org/data/files/The_right_to_be_forgotten_A5_EHH_HYPERLINKS.pdf.
3 Jeffrey Rosen, The Right to be Forgotten, 64 STAN. L. REV. 88 (2012).
4 Council Directive 95/46, art 55 1995 OJ (L281) 36 (European Council).
5 Council Directive 2001/31, art 9 2000 OJ (L178) 2 (European Council).
6 Case C-131/12, Google Spain v. AEPD, 2014, ECLI : EU : C : 2014 : 317 [hereinafter Google Spain].
7 Id. at ¶ 14-20; Michael J Kelly, supra note 1.
8 Id. at ¶88.
9 Id. at ¶41.
10 Id. at ¶81.
11Proposal for a Regulation of the European Parliament and of the Council on the Protection of Individuals with
Regard to the Processing of Personal Data and on the Free Movement of Such Data (General Data Protection
Regulation) art. 17, COM (2012) 11 final (Jan. 25, 2012).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
12 European Union Committee : House of Lords, Eu Data Protection Law : A Right to be Forgotten? at 22, ¶62.
13 Id.
14 Id. at 17, ¶43.
15 Fardhad Manjoo, ‘Right to Be Forgotten’ Online could Spread, N.Y. Times, Aug. 5, 201,
https://www.nytimes.com/2015/08/06/technology/personaltech/right-to-be-forgotten-online-is-poised-to-
spread.html.
16 Justice K.S. Puttuswamy (Retd.) v. Union of India, (2017) 10 SCC 1 (India).
17COMMITTEE OF EXPERTS UNDER THE CHAIRMANSHIP OF JUSTICE BN SRIKRISHNA, A FREE AND FAIR DIGITAL
ECONOMY, PROTECTING PRIVACY, EMPOWERING INDIANS, at 75(2018) [hereinafter Srikrishna Committee Report].
18 The Personal Data Protection Bill, 2018, § 27.

19 The Personal Data Protection Bill, 2019, § 20.
20Shaniqua Singleton, Balancing A Right to be Forgotten with Freedom of Expression in the Wake of Google Spain
v. AEPD, 44 GA. J. OF INT'L & COMP. L. 165,179 (2015).
21 EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS, Charterpedia- Article 11 Explanation,

https://fra.europa.eu/en/charterpedia/article/11-freedom-expression-and-information (last visited Dec. 2, 2019).
22 The Personal Data Protection Bill 2019, § 20(2).
23 Sri Venkatramana Devaru v. Mysore, 1958 SCR 895, 918 (India).
24Gilles Tarabout, Ruling on Rituals : Courts of Law and Religious Practices in Contemporary Hinduism, 17 S.
ASIAN MULTIDISC. J. 1, 3 (2018).
25 Gautam Bhatia, The ‘Balancing’ Test and its Discontents, Indian Const. L. & PHIL.BLOG (May 20, 2016),
https://indconlawphil.wordpress.com/2016/05/20/the-balancing-test-and-its-discontents/ [hereinafter Balancing
Test].
26 Dr. Durga Das Basu, Commentary on the Indian Constitution 3136 (9th ed. 2014).
27
Sakal Papers v. Union of India, (1962) 3 SCR 842 (India).
28 Id. at ¶46.
29 Indian Express v. Union of India, (1985) 2 SCR 287 at ¶25 (India).
30 Balancing Test at 24.

31 In Re : Noise Pollution, (2005) 5 SCC 733 (India).
32
Gautam Bhatia, Summary and Addendum to the Delhi High Court on free speech : When Time/Place/Manner
Restrictions become Problematic Indian Const. L. & PHIL. BLOG (Feb. 21, 2015),
https://indconlawphil.wordpress.com/2015/02/21/summary-and-addendum-to-the-delhi-high-court-on-free-
speech-when-timeplacemanner-restrictions-become-problematic/.
33 Subramaniam Swamy v. Union of India, (2016) 7 SCC 221 (India).
34
Gautam Bhatia, Judicial censorship : A dangerous, emerging trendINDIAN CONST. L. & PHIL .BLOG (May 02,
2016), https://indconlawphil.wordpress.com/2016/05/02/judicial-censorship-a-dangerous-emerging-trend/.
35 Balancing Test at 24.
36
Sharma v. Sri Krishna, AIR 1959 SC 395 (India).
37 Dr. Durga Das Basu at 2145-2147.
38
Id.
39
Sakal Papers v. Union of India, (1962) 3 SCR 842 (India).
40 The Personal Data Protection Bill 2019, § 20(1)(a).
41 David Ardia, Reputation in a Networked World : Revisiting the Social Foundations of Defamation Law, 45 HARV.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
C.R.-C.L. L. REV. 261, 278 (2010).

42
HM SEERVAI, CONSTITUTIONAL LAW OF INDIA : A CRITICAL COMMENTARY 714, ¶10.31(4th ed. Reprint, 2008).
43 Subramaniam Swamy v. Union of India, (2016) 7 SCC 221 (India).
44 Id. At ¶70.
45
Committee of Experts Under the Chairmanship of Justice bn Srikrishna, White Paper of the Committee of
Experts on a Data Protection Framework for India 141 (2017) [hereinafter SRIKRISHNA WHITE PAPER].
46 SRIKRISHNA COMMITTEE REPORTat 78.
47 SRIKRISHNA WHITE PAPER at 141.
48
SRIKRISHNA COMMITTEE REPORT at 78.
49 Mr X. v. Hospital Z, (1998) 8 SCC 296 (India).
50 Kavita Shanmugam, A series of right to be forgotten cases in courts highlight how India doesn't have a
privacy law, T HE SCROLL , Mar. 13, 2017, https://scroll.in/article/831258/a-series-of-right-to-forgotten-cases-in-
courts-highlight-how-india-still-doesnt-have-a-privacy-law.
51
State of Karnataka v. Putta Raja Appeal (Crl.) (2004) 10 SCC 300 (India). See also State of Punjab v. Gurmit
Singh, (1996) 2 SCC 384 : AIR 1996 SC 1393.
52 Justice K.S. Puttuswamy (Retd.) v. Union of India, (2017) 10 SCC 1 (India).
53Id. at ¶636; Sohini Chatterjee, In India's Right to Privacy, a glimpse of a Right to be Forgotten The Wire, Aug.
28, 2017, https://thewire.in/law/right-to-privacy-a-glimpse-of-a-right-to-be-forgotten.
54
Dharamraj Bhanushankar Dave v. State of Gujrat, (2017) 20 SCC 2019.
55 T Sredharan v. State of Kerala, 1969 KLT 472; Sowjanya S, Right to be Forgotten : A Forgotten Part of the
Right to Privacy The L. Blog (Nov. 07, 2018), https://thelawblog.in/2018/11/07/right-to-be-forgotten-a-
forgotten-part-of-right-to-privacy/.
56
Vasunathan v. Registrar General, 2017 SCC OnLine Kar 424.
57
JUSTICE VERMA COMMITTEE, REPORT OF THE COMMITTEE ON AMENDMENTS TO CRIMINAL LAW 437 (2013);
Vikram Raghavan, Verma Committee Report : A Two Part NoteL. & OTHER THINGS (Feb. 01, 2013)
https://lawandotherthings.com/2013/02/verma-committee-report-two-part-note/.
58 Zulfiqar Ahman Khan v. Quintillion Business Media Ltd., 2019 SCC OnLine Del 8494.
59 Subodh Gupta v. HerdScene, CS (OS) 483/2019.
60
Gopal Sathe, Nehmat Kaur, Facebook's Actions In Subodh Gupta's Defamation Case Have Global Implications
For #Me Too Movement, THE HUFFINGTON POST , Oct. 6, 2019, https://www.huffingtonpost.in/entry/facebook-
could-endanger-metoo-movement-subodh-gupta-herd-scene-and-delhi-high
court_in_5d9616dae4b02911e11738aa.
61RP Ltd v. Indian Express, (1988) 4 SCC 592 : AIR 1989 SC 190; Gupta v. President, 1981 Supp SCC 87 : AIR
1982 SC 149; DR. DURGA DAS BASU at 2397, 2398.
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Page 1 Sunday, November 17, 2024

9.2 NLIU LR (2020) 396

Unattainable Balances : The Right to be Forgotten

UNATTAINABLE BALANCES : THE RIGHT TO BE FORGOTTEN

and available for the public's perusal.2

II. BALANCING THE RIGHTS

Indian judiciary has failed to be consistent regarding balancing of the freedom of

The second important case is the infamous judgement of Subramaniam Swamy v.

between freedom of speech and expression and right to privacy/reputation of the

III. THE SRI KRISHNA COMMITTEE REPORT AND WHITE PAPER

IV. INDIAN JUDICIARY ON THE RIGHT TO BE FORGOTTEN

18 The Personal Data Protection Bill, 2018, § 27.

21 EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS, Charterpedia- Article 11 Explanation,

30 Balancing Test at 24.

C.R.-C.L. L. REV. 261, 278 (2010).

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