Indians take fight to court for right to be forgotten online

It is more than a decade since Indian actor and reality television star Ashutosh Kaushik was arrested for drunk driving. Now, he is fighting for the right to put the incident behind him for good.

Kaushik filed a petition in the Delhi high court last year, seeking the removal of about 20 online news reports and video clips of the arrest and other “minor” incidents, highlighting a wider push in India for the legal right to be forgotten online.

“My client is being held hostage to minor incidents from more than a decade ago for which he has already paid the price. Why must he keep paying the price every time someone googles his name?” said Akshat Bajpai, a lawyer representing Kaushik.

Kaushik’s case is among dozens of similar petitions in India seeking to remove information from the internet on the grounds that it is no longer necessary or relevant, pitting privacy rights against freedom of speech and the public interest.

“We must balance the right to be forgotten with the right to know. But what great public good is achieved by having a minor private incident surface every time someone searches his name online?” Bajpai told the Thomson Reuters Foundation.

In the absence of a federal law, several local courts have ruled recently that the right to be forgotten, or to be left alone, is inherent to the right to privacy, which was recognized as a fundamental right by India’s Supreme Court in 2017.

It has become a hot-button issue worldwide with the explosive growth in social media and other online platforms, but few countries have legislation that enshrines it.

The right to be forgotten has been recognized in Europe since 2014, and is also part of the EU’s General Data Protection Regulation (GDPR). The continent’s top court ruled in 2019 that search engines do not have to apply the law elsewhere.

In India, government officials have said a long-awaited data protection bill addresses the right to be forgotten.

A spokesperson for Google, which was named in Kaushik’s petition, said it had systems that enabled users to flag content that violated their policies, including “removing unlawful content under applicable domestic laws.”

“Our goal has always been to support the greatest access to information possible,” the spokesperson added.

Public records

Since the 2014 EU ruling, Google has received more than 1.2 million requests to delist more than 4.8 million links, including from politicians, celebrities and ordinary people.

The search engine must comply if the links are “inadequate, irrelevant or no longer relevant, or excessive,” taking public interest factors into consideration.

More than half the requested URLs have been delisted, Google’s data showed.

Elsewhere, Russia allows removals in some circumstances, while countries including Spain, Argentina and the United States have allowed the right to be forgotten in some cases.

In India, most petitions for the right to be forgotten are from people who were acquitted of crimes or who have served their sentences. Some had information posted online without their consent.

But in addressing the question of whether people can demand that information about themselves be removed from searches, without curbing free speech and legitimate public interest, courts are restrained by the lack of a data protection law, said Anandita Mishra at the Internet Freedom Foundation (IFF).

IFF, a digital rights group, is a respondent in a case being heard by the Kerala high court, where the petitioners want their names removed from a judgment aggregator site, search engines and online court records—as they were all acquitted.

The petitioners say the online records hurt their reputations, careers, and even marriage prospects.

But allowing the right to be forgotten in this case “could open a can of worms,” and undermine freedom of speech and expression, and the right to receive information, IFF said.

“Our stand is that until there is a data protection law, court records are public records,” said Mishra, an associate litigation counsel at IFF.

“When something is a public record, the right to privacy or the right to be forgotten does not apply,” she added.

Slippery slope

The absence of a data protection law in India means that people who wish to request the right to be forgotten must fight for it in court, and wage a long and expensive legal battle.

Not many can afford to do that, Bajpai acknowledged.

For courts too, “it is a balancing act between the petitioner’s right to privacy and the people’s right to know,” he said. “It’s a slippery slope.”

For Kaushik, the actor, whose case is due for its next hearing on April 1, the issue is straightforward.

“I was 26-27 years old when I was arrested for drunk driving. I’m 42 now, and I’m still being punished for it,” he said, adding that the online reports have upset his family, damaged his career and affected marriage proposals.

“I am a public figure. But I also have the right to privacy, the right to be left alone.”