X v. YouTube

This interim decision of the High Court has significant importance until appealed against and modified by a larger bench of the High Court. The decision considers right to be forgotten as an essential and inherent aspect of an individual’s right to privacy which is recognised as a fundamental right under Article 21 of the Indian Constitution. The decision has a significant impact and influence on all other constitutional as well as lower courts which are faced with the legal issue of enforcing right to be forgotten, particularly in sensitive cases, despite the absence of any statutory protection to the right. Indeed, in this case the Court categorically held that the right to privacy of the Plaintiff has to be protected, “especially when it is her person that is being exhibited, and against her will.” The case also casts an impact on the legislature, highlighting the need to enforce and implement the Personal Data Protection Bill 2019 so that right to be forgotten can be effectively given effect to, without it being merely an exception in cases of judicial intervention.

Although the decision technically limits freedom of expression by ordering the Suit Videos to be taken down, it is fundamentally not at odds with the right to freedom of expression in a democratic society. Rather, as has been stipulated in countless judgments worldwide, the rights to privacy and to freedom of expression can coincide and coexist naturally, so long as the rights of the individual are sufficiently protected and the need for disclosure is not in the public interest. In this case, the right to privacy was clearly paramount and the Court considered there was no valid argument (at least in the interim) to maintain the Suit Videos online for public viewing, at great personal and professional expense to the plaintiff.

This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.

CYRILLA: Global Digital Rights Law

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