India’s right to be forgotten law could silence state critics

In December 2019, a dentist from the Indian state of Kerala sent an email to Indian Kanoon, a privately owned search engine that is the largest online repository for Indian legal documents, asking for help. Five years prior, he had been implicated, but eventually acquitted, in a sexual harassment suit. Now, when someone Googled his name, documents from that suit appeared as the first result. “Please remove the judgment or at least my name and address as it is causing a lot of personal issues in my life,” he wrote to the site’s administrators. 

“Sorry, nothing can be done for this case as per our website policy,” founder Sushant Sinha replied. Per company policy, removal requests were granted only under specific circumstances, such as divorces or cases pertaining to children. “If you’ve brought a matter to court, it’s in the public domain now,” Sinha argued.

So, last fall, the dentist filed a “right to be forgotten” plea in the Kerala High Court, naming Google, Indian Kanoon, and the Indian government as defendants. Although the Indian government recently recognized an individual’s right to privacy — which has mainly been used to protect citizens’ information from the state — the country does not have a constitutional “right to be forgotten” like that enshrined in Europe’s General Data Protection Regulation (GDPR), which allows citizens to petition search engines to remove their data. But that could change later this month when the Indian parliament considers the landmark Personal Data Protection bill, which includes a controversial section on the right to be forgotten. Its passage would be good news for the Kerala dentist but troubling for those who worry that the legislation could be abused by an increasingly authoritarian Indian government that could use it to curtail freedom of speech. 

A relatively new legal term, the right to be forgotten was first articulated in 2014 when the European Court of Justice ruled in favor of a Spanish man who sued Google in order to have embarrassing details of his financial history removed from the public domain. The plaintiff, Mario Costeja González, had unsuccessfully petitioned the search engine and a regional newspaper to take down details of his home foreclosure before deciding to file suit at the EU level. The court eventually determined that the fundamental right to privacy extends to the internet and honored Costeja González’s request.

In its ruling, the court qualified its judgment with an exception for people in public life, noting that an individual right to be forgotten cannot trump the public’s right to access relevant information. Determining which requests merit this exception, however, was left to private companies. According to Google’s transparency report, the company has been asked to delist more than 3.9 million websites in Europe since 2014 and has agreed to approximately 47% of those requests. 

The complicating factor in the Indian context is that the right to be forgotten, combined with India’s colonial-era anti-defamation law, the “right to reputation,” may become a legal weapon to protect the interests of the wealthy and powerful. In recent years, anti-defamation laws have been used extensively by industrialists and politicians to attack and intimidate media outlets. “If you don’t think through laws around the culture that exists in this country and just import laws from other countries, it will have consequences that we need to be prepared for,” Jyoti Panday, a researcher with the Internet Governance Project at the Georgia Institute of Technology, told Rest of World.

In 2017, Jay Shah, the son of Home Minister Amit Shah, filed a defamation case against the online news publication The Wire for an investigative story about how his professional fortunes had risen since his father’s party took power. Vivek Doval, son of National Security Advisor Ajit Doval, filed a similar suit against The Caravan magazine in 2019 for exposing his dubious business links to the Cayman Islands, at a time when the Indian government was cracking down on citizens’ use of tax havens. Industrialists like Anil Ambani, chairman of Reliance Group, and Gautam Adani, chairman and founder of Adani Group, have also filed big-ticket defamation cases against newspapers and online publications for damaging their reputations. 

The central question in India is who gets to decide what can be removed and what information is in the public interest. While the European court left this up to the platforms, the Indian government has taken a more proactive approach. In the latest draft of the Personal Data Protection bill, the government proposed appointing special officers to make the final call on each right to be forgotten request. This, observers worry, could create an opening for corruption and abuse and contribute to the ruling Bharatiya Janata Party’s ambition to exercise greater control over online discourse. “In the current form of the bill, the government would be able to easily exert pressure on the adjudicating authorities,” Rohin Garg, a policy analyst at the Internet Freedom Foundation, told Rest of World. 

Although many of the suits against media companies have either been dropped or quashed in court, they have taken a financial serious toll. Should the latest version of the Personal Data Protection bill pass, platforms and publications that refuse to comply with takedown requests would also be penalized with a fine of up to $68 per day or a maximum of $27,239. None of the tech companies that Rest of World reached out to responded for comment, but, in a letter written last year on behalf of tech companies in the region, a lobbying group petitioned the Indian government to consider adopting regulations in parity with the GDPR, including on the right to be forgotten, which would allow platforms to adjudicate requests, which to some, is better than a government authority doing so. 

As India grapples with the best ways to modernize its data regulations, researchers fear that enshrining the right to be forgotten may be not simply a way to protect personal privacy but a potent means of censoring information. “We’re creating a tool for the powerful to protect their reputation in a country where freedom of expression laws are already openly thwarted,” Panday said.