https://www.accessnow.org:443/india-right-forgotten-hands-delhi-high-court/

In India, the “right to be forgotten” is in the hands of the Delhi High Court

This post is the third in a series exploring the “right to be forgotten” around the world. It’s aimed at elucidating the regional debates highlighted in our position paper, Understanding the Right to Be Forgotten Globally, available in English, Spanish and, Portuguese.

Our first post considers the right to be forgotten in Brazil, the second on South America and Argentina. Here, we look at a court proceeding in India.

A petition for a right to be forgotten in India risks freedom of expression and access to information

Earlier this year, Laksh Vir Singh Yadav initiated a case asking the Delhi High Court to create a “right to be forgotten” so that publicly reported and circulated court judgments could be de-listed from online platforms. In Europe, the right to de-list means that individuals can request that search engines hide web addresses from results when a search is done using their names. Yadav wants to remove and de-list a judgment in a criminal case involving his wife and mother, indicating that having this information available affects his employment opportunities. But Yadav’s request goes well beyond the scope of the right to de-list in Europe, as it seeks to remove content from the public record — namely, published, non-redacted court judgments. If the request is granted, it could lead to widespread removal  of online content that is in the public interest, creating risks for freedom of information and freedom of expression.

The Delhi High Court took the case and has ordered Google India and the Ministry of Communication and Information Technology to participate in the hearing. The Internet Freedom Foundation (IFF), meanwhile, is concerned about the human rights implications of these developments, and has moved to intervene. The High Court is considering IFF’s request, and the next hearing is set to take place on February 2, 2017.

Back to basics: data protection must go first!

In this case, the Delhi High Court must assess whether the Indian Constitution’s guarantee of the fundamental right to life and liberty under Article 21 — which many understand to include a right to privacy — encompasses a right to de-list.

It is encouraging that the people of India are seeking greater protection and control over their personal information. Currently, there are limited sectoral rules on personal financial data for banks, very restricted civil law provisions for corporate firms, and other private institutions under the Information Technology Act, and judicially developed provisions for overseeing communications surveillance.

However, India does not currently have a comprehensive national privacy or data protection law — and is facing a situation where the Union Government has argued that privacy is not a fundamental right. And as we explain in our position paper, comprehensive data protection legislation must be in place before considering a right to de-list. This right must also be appropriately limited. Under no circumstances should such a right be established in the context of defamation legislation or legislation protecting honour, as it could lead to widespread removal of content and harm freedom of expression.

In fact, Access Now does not support governments establishing a right to de-list or a right to obscurity at all, given the risks for misinterpretation or wrongful implementation that harm human rights. These risks are exacerbated when there is no comprehensive data protection law, and when there is inadequate transparency. Nevertheless, legislatures and courts worldwide continue to show interest in establishing and adjudicating on the right to de-list.

Limiting the right to de-list to protect free expression

Therefore, to help mitigate the risks of abuse and harm to human rights, we have identified legal safeguards that must be in place if a country does establish the right to de-list:

  1. A right to de-list must be limited to the sole purpose of protecting personal data
  2. Criteria for de-listing must be clearly defined in comprehensive data protection legislation to avoid interference with human rights
  3. Competent judicial authorities should apply standards for determining what is de-listed
  4. The right to de-list must be limited in scope and application
  5. Search engines must be transparent about when and how they comply with de-listing requests
  6. Users must have easy access to remedy

The right to de-list has critically important implications for privacy and free expression online. With our paper, we hope to help lawmakers and courts globally develop solutions that guarantee the protection and full exercise of these rights, which should be mutually reinforcing.

For more details, please read the full paper: Understanding the “right to be forgotten” globally.

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