People who have been acquitted in criminal cases, parties to settled disputes, and individuals unfairly linked to lawsuits may now find it easier to seek protection for their digital reputations following the Delhi High Court’s landmark ruling on the ‘right to be forgotten’.
The Supreme Court has, for the first time, created a judicial roadmap for enforcing the “right to be forgotten,” setting out detailed principles on when names can be removed from search results or hidden in court records.
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What is “De-indexing”?
De-indexing is a directive issued to a private platform that does not result in the erasure of the judicial record, which remains available on court websites and legal databases.
It merely removes the name in question as a searchable retrieval key, thus restricting easy access to the record through name-based searches. In contrast, a suppression is a directive issued to a court or its Registry to amend the public version of the judicial record by replacing names and personal identifiers with neutral references such as “ABC” or “XYZ.”
Recognizing the right to be forgotten as an integral part of the fundamental right to privacy, a bench of Justice Sachin Datta, in its May 29 judgment, released on Monday, said that courts, while considering de-indexing, must evaluate the nature of the information, the outcome of the proceedings concluded, the public role of the individual concerned, the accuracy and continuing relevance of the information.
He explained that the de-indexing directives issued in accordance with the Framework should operate accordingly globally, across all versions and domains of the relevant search engine, to the extent necessary to provide meaningful and effective protection of the individual’s fundamental right to information privacy under Article 21.
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What happens if the order ends in acquittal, discharge or dismissal?
The judge said that in cases that end in acquittal, acquittal or annulment, the continued unrestricted name-based searchability of judicial records undermines the presumption of innocence and creates a disconnect between legal vindication and digital visibility, and in cases where proceedings end through settlement or compromise, continued online access may fail the proportionality test if the harm to an individual outweighs any legitimate public interest.
In purely civil and matrimonial disputes, the court noted that family life and personal relationships fall within the privacy protection of Article 21, and once these proceedings are over, their unrestricted digital searchability serves only a minimal purpose and has no meaningful connection to open justice, the order said.
“Putting a public figure into a single sphere does not transform the intimate details of her private life, including marital disputes, personal relationships, or conduct completely unrelated to her public role, into matters of public interest. “As recognized in Google Spain SL (supra), the lawfulness of the processing of personal data is not established but must be assessed in the light of its ongoing necessity and importance,” the court said in its order.
She added: “When information becomes insufficient, irrelevant, no longer relevant or excessive in relation to any identifiable purpose, its continued searchability fails the test of proportionality.”
“Where information is patently false, its continued searchability on the basis of name does not merit protection on the grounds of its continued relevance. The principles of open justice and the public interest provide no support for the perpetuation of a patently false association between a person and those proceedings,” the court said in its order.
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When is de-indexing inappropriate?
The Court also ruled that de-indexing may not be appropriate in cases involving convictions for crimes against women or children, or crimes involving breaches of public trust by public officials, elected representatives or persons holding positions of trust, but may be justified where proceedings are discontinued by death without any determination on the merits, applying the principle of proportionality.
The order was passed as part of a group of petitions submitted by 39 individuals demanding enforcement of the “right to be forgotten” by requesting the removal of content.
They all share a common complaint: that the continued availability of judicial records containing their identities in the digital public domain and the ease of name-based searches has caused disproportionate and continuing harm to their reputations, dignity and future prospects, which outweighs any legitimate public interest served by such unrestricted access.
The Government opposed the petition, holding that judicial orders/judgments form part of public records and judicial documents within the common law system and, therefore, cannot ordinarily be treated as confidential information merely because they contain personal details relating to individuals.
Public records and the right to privacy
In addition, media houses have stated that once information forms part of public records or relates to events occurring in the public domain, the right to privacy cannot normally be invoked to restrict the dissemination or reporting of such information.
Google, Indian Kanoon and X Corp have opposed the petitions seeking to enforce the right to be forgotten. Google argued that it acts as a passive intermediary, only indexing third-party content, and asserted that takedown orders should be directed against the original publishers because deleting the source automatically results in de-indexing.
Indian Kanoon reported that the directive to remove or segregate public judicial records would amount to private censorship and violate the fundamental right to freedom of speech and expression. Likewise, X Corp argued that the right to be forgotten cannot be invoked to restrict access to information that forms part of public records.
Ultimately, the Supreme Court ordered de-indexing in the cases of all but four petitioners and granted them freedom to seek suppression by transferring the appropriate applications to the courts that issued the original orders or judgments.
Regarding the framework governing concealment, the Court explained that such relief would be limited to concealment of names and personal identifiers, while the substance of the judgment, including its reasons, findings, legal conclusions and court details, would remain accessible to the public to preserve its institutional value and precedent.
The bench also held that the masking directives would operate both retrospectively and prospectively, covering existing digital records as well as future uploads.
