RIGHT TO BE FORGOTTEN: A REMEDY TO CYBERBULLYING

 Reading time: 8 minutes

ABSTRACT

Cyberbullying leads to an extreme psychological breakdown of the victims that cause low self-esteem which in worse cases may lead to suicide. Hiding behind the screen people are hacking someone’s account, stalking, trolling, threatening victims, etc. Even though the bullies behind the screen are punished the victims are left with long-lasting fear and low self-esteem.  The victims are always afraid that new people will see their personal, misleading, and embracing information and judge them and cannot forget their past traumatic experiences. At this point they want all those information to just vanish from the internet and that’s when the Right to be Forgotten comes into the picture. It provides every individual with the right to erase inaccurate and misleading information from the internet. The research tried to elucidate how the Right to be Forgotten can act as a remedy to victims of cyberbullying.

INTRODUCTION

According to the UNICEF “Cyberbullying is bullying with the use of digital technologies. It can take place on social media, messaging platforms, gaming platforms, and mobile phones. It is repeated behavior, aimed at scaring, angering, or shaming those who are targeted. Examples include: spreading lies about or posting embarrassing photos or videos of someone on social media; sending hurtful, abusive, or threatening messages, images or videos via messaging platforms; impersonating someone and sending mean messages to others on their behalf or through fake accounts.”[1] It is disappointing that we come across incidents mentioned above in news and around us daily. It is the younger generation who uses social media platforms more often and are very concerned about people’s opinions regarding them so they are prone to cyberbullying. In this research while considering impacts of cyberbullying we are focusing more on how it impacts our younger generation.

Many individuals have been subject to cyberbullying and their personal, misleading, embarrassing information went viral and left a huge scar on their social media accounts. The Right to be Forgotten gives way to victims to erase all those deep scars caused by cyberbullying and public shaming. It is disappointing that in India we don’t have any law regarding the Right to be Forgotten but the judgments of the various high courts which rule it right now.  But the encouraging thing is it is one of the provisions Personal Data Protection Bill, 2019 and if approved will become a statutory right.

In this research article, we try to understand how cyberbullying is a big threat and impacts people and how it leads to violation of the constitutional rights, and how it is not something that can be ignored.  Further we discuss how right to be forgotten can act as a remedy to cyberbullying and how and when it was introduced and how it has developed through all these years in India by case laws.

CYBERBULLYING: A THREAT TO INDIA’S YOUNG GENERATION

According to the recent report of Comparitech (a UK-based firm) “India is a land of cyberbullies- the country has recorded the highest rate of children falling victim to cyberbullying”.[2]

There is no age disparity when it comes to cyberbullying but the youngsters are very concerned about other people’s opinions about them and hence more prone to it. The major form of bullying that teenagers face is of trolling about their appearance. Recently due to pandemic the online presence of children has increased more and so is the cyberbullying on all social media platforms. According to Statista research “children spent around 20% more time on social media sites due to the pandemic”[3] and according to another study by L1GHT, “online toxicity and cyberbullying on social media sites and video conferencing apps increased by up to 70%  due to the pandemic”[4].

A lot of teens never open up their parents or any adults as such about their mental status or what kind of pain they are in because of bullying they face and just wait for help to come to them. And when that help does not come, they fall into depression. And at times, when they open up, parents don’t take it seriously and even if they do, they are afraid to file police complaints due to the common syndrome in India ‘log kya kahenge’.

To make things worse only a few legal actions are available against cyberbullying. The bully walks free with very few punishments after the tremendous damage he/she has committed. The strong increase in cyberbullying cases every year shows how necessary it is for government to update laws and provide required punishments to the perpetrator. 

NOT SOMETHING TO JUST SURVIVE AND EXIST

 If to bully someone online is easy then surviving through bullying should be easy too. But that is not the reality.

A case in our capital was registered regarding cyberbullying, Students of Class 11 started a group called ‘BOIS Locker’ on a social media platform. The admin of the group was just a 18 year old and some of the members were even 15 years old. They started sending obscene images and messages of their own classmates. [5] the incident shook the entire nation and both created widespread fear among all teenagers and their parents.

Another such case was seen and registered in Kerala. An 18-year-old college girl from a poor family was selling fish to pay for her studies. This selling of fish by her created widespread trolling. Due to this trolling and bullying she faced a lot of problems.[6] People are taking advantage of the fact that they are behind the screen using fake id and thinking nobody would be able to catch them.

Nowadays many youngsters especially are harming their exes by uploading explicit images and abusive contents, the term used for this is revenge pornography. The major threat in it is bully uses the morphed photos of victims and harass them and blackmails them to do unimaginable things. Due to the fear of facing the family and the society, the victim initially suffers silently but one day getting tired of this bullying, the victim chooses to end their own lives.

So, as we can see Cyberbullying is not something in which we should encourage victims to suffer and survive silently. Stricter punishments and stricter laws need to be implemented in order to curb these and should privacy of victim who has been affected needs to be protected.

VIOLATION OF THE CONSTITUTIONAL RIGHTS

Each and every citizen has Right to Health provided under Article 21 of the Constitution which includes mental wellbeing as well. Cyberbullying leads to increased anxiety and stress, mental health issues, depression, acting out violently, and low self-worth. Cyberbullying also at times results in long-lasting emotional effects. According to psychologists, “Behavioural and mental changes are not the only effects, there can be physical effects also. Intense feelings of stress and anxiety due to cyberbullying results into physical issues such as insomnia, gastrointestinal issues, and harmful eating patterns”.[7] In worst cases victims commit suicide, According to Journal of Medical Internet Research “Children and young people under 25 who are victims of cyberbullying are more than twice as likely to self-harm and enact suicidal behaviour”.

As above mentioned, the way cyberbullying affects victims’ mental health it is no less than a serious crime. Leaking someone’s private information on internet and spreading defaming comments amounts to set of crimes. Every person has right to privacy and right to health and cyberbullying violates both of them.

HOW RIGHT TO BE FORGOTTEN CAN HELP?

People who experience a huge scam and bullying physically often feel like running somewhere and escaping from this scar of their history. The same goes with the victim of Cyberbully they also want those bullying information to vanish and disappear from internet and social media platforms. Many people are victimized as their personal information was made public and it went viral. Though we can’t reduce the agony through which they suffered but by removing those trolled comments or those defaming statements amounts them we can at least make sure that they don’t keep on suffering in the future also. The right to be forgotten is provides that vanishing power to the victims of cyberbullying. Though the removal of data depends upon the way it is affecting the victim’s public life and the nature and seriousness of the subject. The Right to be Forgotten gives a way to the victim to erase all those deep scars caused by cyberbullying and public shaming.

TRACING THE INCEPTION OF RIGHT TO BE FORGOTTEN

“The concept of such right can be traced all the way back to French Law which recognizes ‘le droit a l’oubli’ roughly translated into the right of oblivion”[8]. This right was for a convicted person who had served his time and been rehabilitated to stop publication of the facts of his conviction and incarceration.

The right was first recognized in modern times by the Data Protection Directive, 1995 of the European Union. In the said directive, an individual was allowed to put in request to the authorities to delete certain information regarding them from internet because of the incomplete or inaccurate nature of information.

The right to be forgotten first came into limelight in the landmark case of ‘Google Spain SL and Google Inc. v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González’ almost two decades later. The Court of Justice of the European Union (hereafter referred to as ‘CJEU’) held that “the EU citizens possess the right to be forgotten and established that personal privacy outweighed the interest in free data flow in the European Union”[9]. It was because of this decision that the said right to be forgotten found its way paved into the GDP Regulations, 2016. In the above case Mr. Costeja claimed two reliefs, “the first one against the local Spanish newspaper requesting the deletion or alteration of such article and the second one being against Google Spain SL and Google Inc. to remove or conceal the personal data relating to him so that such data ceases to be a part of the search results and cannot be connected to the article of the newspaper.”[10] The justification behind claiming such reliefs were that the proceedings against him had been resolved and he had paid his liability in full years ago, and for such information to be still available to the public, did not make any sense, and i.e., was entirely irrelevant. The regulatory authority, sustained Mr. Costeja’s claims regarding Google Inc. and Google Spain SL, as it considered that in this regard “operators of search engines are subject to data protection legislation given that they carry out data processing for which they are responsible and act as intermediaries”[11]. The ‘Google Inc.’ along with ‘Google Spain’ approached the CJEU, the question raised before court was “what obligations are owed by operators of search engines to protect personal data of persons concerned who do not wish that certain information, which is published on third parties’ websites and contains personal data relating to them that enable that information to be linked to them, be located, indexed and made available to internet users differently.”[12] The CJEU, held in “the affirmative that the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful. However, certain qualifications were mentioned before the exercise of such right to be forgotten of a citizen, which the court said stems from the right to privacy and the application of such a right was made subject to the condition that if the processing of personal data will be incompatible with the concerned Directive, then it may be recalled.”[13] Hence, The Google Spain judgment was a changing point wherein the ECJ held that “right to be forgotten was a facet of right to privacy”.

THE DEVELOPMENT OF RIGHT TO BE FORGOTTEN IN INDIA

In the Supreme Court ‘s landmark judgment ‘Justice K.S. Puttuswamy (Retd.) and Anr. v. Union of India’ [14]right to privacy was recognized and all aspects related to it were discussed. The judgment though recognized the existence of right to be forgotten as one of the ‘facets of the right to privacy’ but chose not to impose it as a separate fundamental right. Therefore, the right to be forgotten is left as ‘a matter of judicial interpretation’ by the High courts of India. Although there have not been many cases decided by Indian courts regarding this matter but in most of the cases the High courts have ruled in favour of right but the Gujarat High court in one case has ruled against it.

In the year 2016, in ‘Civil Writ Petition No. 9478’, the Kerala High Court “passed an interim order requiring Indian Kanoon to remove the name of a rape victim which was published on its website along with the two judgments rendered by the Kerala High Court in Writ petitions filed by her.” The High court in this case recognized the Petitioner’s ‘right to privacy and reputation’, without separately using ‘right to be forgotten’.[15]

The Gujarat High court conversely though, in 2017 in the case of ‘Dharamraj Bhanushankar Dave vs State of Gujarat, Special Civil Application No. 1854/2015[16], dismissed a petition seeking “permanent restraint on public exhibition of judgment and order on an online repository of judgments and indexing by Google”. According to the petitioner he had been acquitted of numerous offences by the High court and the sessions court and the ‘judgement in question was class as unreportable’. The High court dismissed the petition on the following ground that “the petitioner was not able to point out any provisions in law that posed a threat to his right to life and liberty, and that publication on a website did not amount to ‘reporting’ of a judgment since it is not a law report[17]”.

However, the Delhi High Court in the ‘Zulfiqar Ahman Khan vs M/S Quintillion Business Media Pvt. Ltd. & Ors., CS(OS) 642/2018[18], upheld a person’s right to be forgotten. Plaintiff in this case approached the High court “seeking a permanent injunction against the Defendants, who had written two articles against the Plaintiff on the basis of harassment complaints claimed to have been received by them, against the Plaintiff, as part of the #MeToo campaign[19].” Although the Defendants had agreed to take down the news articles, the same had been republished by other websites in the interim. The court recognized the Plaintiff’s Right to privacy, of which the `Right to be forgotten’ and the `Right to be left alone’ are integral aspects, and directed that any republication of the content of the originally impugned articles or any extracts/ or excerpts thereof, as also modified versions thereof, on any print or digital/electronic platform shall stand restrained during the pendency of the present suit[20].”

The Odisha High Court in the Subhranshu Rout v. State of Odisha, BLAPL No.4592/2020[21]case of 2020, gave a thorough examination of one’s right to be forgotten in any context. In the above case, the High court was deciding a ‘bail application under section 439 of Cr.P.C’, wherein the Petitioner, who was the accused in the FIR, had released certain objectionable images of the complainant on Facebook against her will. The court examined the Right to be Forgotten as a remedy to victims of obscene images or films frequently shared on social media platforms by lovers to harass and blackmail innocent girls. The Court relied on cases decided in the EU regarding the issue of right to be forgotten. Remarkably, the High court commented that “it cannot be expected that the victim shall approach the court to get the inaccurate data or information erased every single time, regarding data which is within the control of data controllers such as Facebook or Twitter or any other social media platforms[22].” It also recognized that in the absence of clear legislation, it is difficult to adjudicate on the practical limitations and technological nuances.

One of the most recent cases recognizing the Right to be Forgotten is Delhi High court’s ‘Jorawar Singh Mundy vs Union of India[23]. The petitioner Jorawar Singh Mundy, was an American citizen by birth but of Indian origin, who was charged in a narcotics case in 2009 while visiting India but was cleared by both the trial and the Delhi High Court. Mundy later on, returned to the U.S.A and studied law and every time an employer would do a background check using google. It led employers to this judgement. Thus, he requested that three websites, ‘Google, Indian Kanoon, and vLex’, remove the judgments. ‘vLex’ removed it while the case was going on. On the other hand, the Delhi High Court noted “the irreparable harm that it may have done to Mundy’s social life and career prospects, even though he was ultimately acquitted, and gave him interim protection”. The judgment was ordered to be removed from Google’s search results, and India Kanoon was ordered to block the judgment from being accessed through using search engines such as Google and Yahoo.

The encouraging news is the Ministry of Law and Justice, on ‘recommendations of Justice B.N. Srikrishna Committee’, has included the Right to be forgotten, as a statutory right in Personal Data Protection Bill, 2019, and it is already tabled in parliament.

CONCLUSION

The article majorly dealt with how cyberbullying affects people, especially the younger generation and how the Right to be Forgotten can be its remedy. Cyberbullying leaves a long-lasting impact on the mind of victim and new more stringent laws and rules needs to be made to punish those bullies behind the screen. The Right to be Forgotten has vanishing power and acts as the victim’s soothing medicine. It cannot reduce the trauma and sufferings victims had to go through because of cyberbullying but can make sure that their scars are not rejuvenated in future. It can help victims a lot especially women whose modesty is ruined by some morphed obscene images posted on social media platforms but at the same time, we need to make sure not to make it blanket to all the people. Let us hope that our parliament very soon approves of the Right to be Forgotten and suffering of victims of cyberbullying can be reduced.

REFRENCES

  1. “Anti-Cyber Bullying Laws In India – An Analysis – Criminal Law – India.” Accessed February 21, 2022. https://www.mondaq.com/india/crime/989624/anti-cyber-bullying-laws-in-india–an-analysis.
  2. Aswani, Nikhil. “THE RIGHT TO BE FORGOTTEN AND ITS ENFORCEMENT IN INDIA” 6, no. 3 (2020): 17.
  3. Bose, Abanti. “Right to Be Forgotten and the Constitutional Dilemma.” IPleaders (blog), August 15, 2021. https://blog.ipleaders.in/right-forgotten-constitutional-dilemma/.
  4. Cook, Lyndsay. “The Right to Be Forgotten: A Step in the Right Direction for Cyberspace Law and Policy.” The Internet 6 (2015): 12.
  5. The Times of India. “Cyber Harassment Cases See Upswing in Pandemic,” January 12, 2022. https://timesofindia.indiatimes.com/city/mumbai/cyber-harassment-cases-see-upswing-in-pandemic/articleshow/88842765.cms.
  6. “Cyber Harassment Cases See Upswing In Pandemic | Mumbai News – Times of India.” Accessed February 21, 2022. https://timesofindia.indiatimes.com/city/mumbai/cyber-harassment-cases-see-upswing-in-pandemic/articleshow/88842765.cms.
  7. “Cyberbullying and Its Effects on Teen Suicide – CALR.” Accessed February 21, 2022. https://calr.in/cyberbullying-and-its-effects-on-teen-suicide/.
  8. Comparitech. “Cyberbullying Statistics and Facts for 2022.” Accessed February 20, 2022. https://www.comparitech.com/internet-providers/cyberbullying-statistics/.
  9. “Cyberbullying Statistics and Facts for 2022 | Comparitech.” Accessed February 21, 2022. https://www.comparitech.com/internet-providers/cyberbullying-statistics/.
  10. “Cyberbullying: What Is It and How to Stop It.” Accessed February 21, 2022. https://www.unicef.org/end-violence/how-to-stop-cyberbullying.
  11. The Indian Express. “Indian Kids Are the Most Cyberbullied in the World: Study,” October 26, 2018. https://indianexpress.com/article/lifestyle/life-style/indian-kids-most-cyberbullied-5419510/.
  12. Kelly, Michael, and David Satola. “The Right to Be Forgotten.” University of Illinois Law Review 2017 (January 1, 2017): 1–64.
  13. Khatwani, Naman. “THE RIGHT TO BE FORGOTTEN; INCORPORATION IN INDIA,” n.d., 11.
  14. Singh, Ajay Pal, and Rahil Setia. “RIGHT TO BE FORGOTTEN- RECOGINTION, LEGISLATION AND ACCEPTANCE IN INTERNATIONAL AND DOMESTIC DOMAIN” 6, no. 2 (n.d.): 20.
  15. “The Right to Be Forgotten.” Accessed February 21, 2022. https://legalserviceindia.com/legal/article-5935-the-right-to-be-forgotten.html.
  16. “The Right To Be Forgotten – Privacy – India.” Accessed February 20, 2022. https://www.mondaq.com/india/privacy-protection/1103662/the-right-to-be-forgotten.
  17. Lexlife India. “THE SIGNIFICANCE OF RIGHT TO BE FORGOTTEN AT CONTEMPORARY TIMES,” February 23, 2021. https://lexlife.in/2021/02/23/the-significance-of-right-to-be-forgotten-at-contemporary-times/.
  18. RFMLR. “VOLUME 5 ISSUE 1.” Accessed February 20, 2022. https://www.rfmlr.com/volume-5-issue-1.
  19. ScienceDaily. “Young Victims of Cyberbullying Twice as Likely to Attempt Suicide and Self-Harm, Study Finds.” Accessed February 21, 2022. https://www.sciencedaily.com/releases/2018/04/180419130923.htm.

[1] Unicef.org, https://www.unicef.org/end-violence/how-to-stop-cyberbullying ( Last visited on 20 February, 2022).

[2] Comparitech, “Cyberbullying facts and statistics for 2018 – 2022” (January,2022).

[3] Ibid

[4] Ibid

[5] Archana Sharma vs State of Nct of Delhi & Ors, WP(CRL) 3202/2020 & C.M. 11128/2020.

 

[7] Kapersky, https://usa.kaspersky.com/resource-center/preemptive-safety/cyberbullying-effects , (Last visited on 20 February, 2022)

[8] The Law Brigade, https://thelawbrigade.com/wp-content/uploads/2020/05/Nikhil-IJLDAI.pdf  (Last visited at 20 Feb, 2022).

[9] Google Spain SL v. Agencia Espafiola de Proteccion de Datos (AEPD) 2014 E.C.R. 317.

[10] Ibid

[11]Ibid

[12]Ibid

[13]Ibid

[14] Justice K.S. Puttaswamy (Retd.), (2017) 10 SCC 1.

[15] Mondaq, https://www.mondaq.com/india/privacy-protection/1103662/the-right-to-be-forgotten? (Last visited on 20 Feb, 2021).

[16] Dharamraj Bhanushankar Dave v. State of Gujarat & Ors 2015 SCC Online Guj 2019.

[17] Mondaq, https://www.mondaq.com/india/privacy-protection/1103662/the-right-to-be-forgotten? (Last visited on 20 Feb, 2021).

[18] Zulfiqar Ahman Khan v. Quintillion Business Media Pvt. Ltd. & Ors. AIR 2019 Del. 132.

[19] Mondaq, https://www.mondaq.com/india/privacy-protection/1103662/the-right-to-be-forgotten? (Last visited on 20 Feb, 2021).

[20] Zulfiqar Ahman Khan v. Quintillion Business Media Pvt. Ltd. & Ors. AIR 2019 Del. 132.

[21] Subhranshu Rout @ Gugul v. State of Odisha [BLAPL No. 4592 of 2020], High Court of Orissa, decided on 23 November 2020.

[22] Subhranshu Rout @ Gugul v. State of Odisha [BLAPL No. 4592 of 2020], High Court of Orissa, decided on 23 November 2020.

[23] Jorawar Singh Mundy vs Union of India, W.P.(C) 3918/2021 & CM APPL. 19941/202.

Author: Urmi Shah, Gujarat National Law University 

Editor: Kanishka VaishSenior Editor, LexLife India

THE SIGNIFICANCE OF RIGHT TO BE FORGOTTEN AT CONTEMPORARY TIMES

BY LAYING SPECIAL EMPHASIS ON SUBHRANSHU ROUT v. STATE OF ODISHA[1]

Reading time : 10 minutes

INTRODUCTION

One of the comprehensive landmark judgments of the Supreme Court that gave birth and due recognition to Right to privacy as a fundamental right under Article- 21 of the Indian Constitution was K.S. Puttaswamy v. Union of India[2], being propounded by the Constitutional Bench of the Apex Court comprising of 9 Hon’ble Judges. This right that was recognised as an integral part of Article- 21 gave birth to other rights as well in cyberspace, internet and social media arena such as- Right to Identity, Right to control dissemination of personal information and Right to be forgotten.

The Constitutional Courts of our Country in recent times have come forward in granting much needed protection to the Right to be forgotten of an individual and have delivered quality judgements on the lines of K.S. Puttaswamy v. Union of India and the much celebrated judgment of the Court of Justice of the European Union i.e. Google Spain SL and Another v. Agencia Española de Protección de Datos (AEPD) and another[3].

The interpretation of the Odisha High Court in its recent judgment of Subhranshu Rout v. State of Odisha reflects upon the procedural lapses that prevail in our Criminal Justice System and the concerns regarding the implementation of this very fundamental right.

THE 4G REVOLUTION AND ITS AFTER EFFECTS

The development of Information Technology worldwide led to the free flow of information of all sorts across national as well as International borders, the technology has evolved at such an immense rate in the decade or so that it has made it possible to enter anyone’s house without actually being present there. In India, the advent of 4-G revolution[4] (lead by Jio 4G) in the latter half of 2016 proved to be a turning point in the history of Indian I.T. Sector as easily accessible Internet Connections reached the vast and diverse population of India at a very cheap rate. In a span of 4 more than years, Indian population has emerged as one of the active consumer of all the social media platforms and the policies that are framed by such platforms are brought up in consonance with the Indian perspective.

The intensity with which the Internet reached each and every household of our country lead to the transformation of Indian administration as well and the Government too open heartedly resorted to these changes and benefitted remuneratively as well as non- remuneratively the citizens of the country during the pandemic[5]. But the legislative framework that would be governing this field has not been determined by the Government of India till date[6] (No data protection bill that would protect the users). The consequence of which has been that there have been regular speculations regarding infringement as well as encroachment on the right to privacy of an individual.

The only institution that has stood on a regular basis for the rights of the citizens is the Indian Judiciary[7].

RIGHT TO BE FORGOTTEN- AN EMERGING ARM OF RIGHT TO PRIVACY

The 9 judge constitutional bench decision of the Apex Court in 2017 defined the scope of the right to privacy under Article- 21 and while emphasizing on one of its branches i.e. the right to be forgotten the Court opined that one of the significant effect of digital age has been that whatever data that is shared with it, such data/ information attains the character of permanency which prevents a particular individual to get rid of such data. As people grow day by day through the experiences they gather from the past, such data stored should not act as friction in the process of learning[8] as every individual has a tendency to become a bit more than what he was yesterday. Here, comes the role of the State to ensure that the data shared by its citizens over any social media platform is not used in a manner that may compromise the interests of the general public and the data that is collected with the prior consent of such concerned user be disposed of.

On the other hand, the Court also was of the view that when such data/ information stored is necessary for exercising the right of freedom of expression[9] and information for compliance of legal obligations[10], in public interest, for scientific or historical research, then in such cases the data/ information can be stored[11]

Soon after the landmark judgment of the European Court of Justice in Google Spain SL and Another v. Agencia Española de Protección de Datos (AEPD) and another[12], several High Courts of our country too became anxious for the protection of right to be forgotten (even prior to the pronouncement of Puttaswamy judgment) and the first judgment that was delivered on this issue was of Karnataka High Court in Vasunathan v. High Court of Karnataka[13] where the High Court didn’t allow the name of a woman to be reflected in public domain except the High Court’s own website, as the Court was of the view that it would lead to grave repercussions and badly affect her reputation in the society. Similarly in Sredharam v. State of Kerala[14], the Kerala High Court ordered the removal of available personal information of the Petitioner from the website of Indian Kanoon to give effect to the right to be forgotten.

As observed throughout the judgments on this issue, the Courts have not intended to mould the right to be forgotten in the form of a blanket right and the two essential elements that the Courts have kept into consideration while deciding on this right are-

  • The nature and sensitivity of the data, and
  • Whether such data is essential for public interest

In short, the case of any particular individual should past the Public Essentiality Test, in order to be recognised as Right to be forgotten[15].

RECENT INTERPRETATION BY THE HIGH COURT OF ODISHA

The case Subhranshu Rout v. State of Odisha was brought before the High Court in the form of a bail application under Section- 439 of CRPC and the accused was charged under Section- 376, 292, 465, 469, 509 of Indian Penal Code read with Sections- 66, 66(C), 67, 67(A) of the Information Technology Act, 2000.

The brief facts of the case was that the petitioner/ victim and the accused were in love for about a year and one day when the victim was alone at her house taking advantage of such situation raped her and recorded such video in his mobile phone. On narrating the entire incident to her parents the accused through a fake Facebook I.D. shared the video and later when the complaint was filed before the Police such content was deleted by the accused.

Although the alleged content was deleted by the accused but the information shared on social media platforms is like a sea of ocean and is a never ending process, in the instant case the investigation was underway and the accused filed for bail before the Odisha High Court. The High Court while dismissing the bail plea emphasised on a number of essential aspects.

  • The Court opined that our Criminal Justice System is filled up with ways to impose strong penal action against the accused but on the other hand it is the same legislation that has no institutional framework to get the objectionable content deleted from the public domain.
  • There have been substantial increase in the number of such matters where the right to privacy (that has been recognised as one of the fundamental right) of an individual gets violated by such inhuman acts[16].
  • The Court also stressed upon the General Data Protection Regulation (GDPR) framed by the European Union that governs the manner in which the data can be collected, processed and erased.
  • The Court also reiterated on some of the landmark judgments of various High Courts including the judgment of the Delhi High Court in Zulfiqar Ahman Khan v. Quintillion Business Media Pvt. Ltd.[17] where the Court recognized “right to be forgotten” and “right to be left alone” as an integral part of Article- 21.
  • The Court was of the view that capturing images and videos of a woman with her consent during the subsistence of a relationship cannot be a ground in itself to misuse it in any manner that an individual wants when such relationship between the accused and the victim ceases to exist, therefore it becomes very much important to give due importance as well as preference to right to be forgotten over all other rights to prevent the modesty of a woman.

The High Court while concluding its judgment stated that the Criminal Justice System of our country is more of a sentence oriented and in pays less attention on the victim’s loss and suffering[18]. The Court at the end found itself to be the institution that can grant no remedy to the victim for the content that has been shared by the accused as there is no legislation at present that could provide a legal pathway for reverting back such content, but made an attempt to fill up the void by dismissing the bail plea of the accused on the ground that the accused had committed a severe offence of rape and is responsible of outraging the modesty of the victim as there is no means to trace the boundaries up to which such recorded video went up to.

The judgment of the High Court of Odisha in this instant case touches upon various aspects of our Criminal Justice System by emphasising upon the basic structure that was framed regarding Right to Privacy, the limitation at present, in our Procedural set up to combat such unlawful activities that encroaches upon the privacy of an innocent being and lastly hinted upon that the ball is in someone’s else Court by which it meant that now it is the turn of the Parliament to frame an enactment that provides an institutional set up in consonance with the Judicial Pronouncements[19].

CONCLUSION

The judgment of the Odisha High Court through Hon’ble Justice S.K. Panigrahi reflects upon the idea that the Indian Judiciary is possessing by reminding the Union Legislature of the laws that will prevent such atrocities on the rights that are very fundamental for human existence at these contemporary times where data along with energy have become the key drivers of a country’s economy.

Apart from the afore- mentioned judgment there has also been a writ petition filed in the Kerala High Court[20] for issuing the writ of Mandamus against the Union Government to formulate legislation on Right to be forgotten so that all the search engines and social media platform abide by it. In the recent times there has been a huge cry for enactment of an act on the lines of General Data Protection Regulation, 2016[21] so that the victim of such infringement does not have to approach the Court every time rather such person can raise his concern before a statutory grievance redressal forum.


[1] 2020 SCC Online Ori 878

[2] (2017) 10 SCC 1

[3] [2014] 3 WLR 659

[4] BS Web Team, “India to be fully 4G country by 2020, says Mukesh Ambani: Read full speech ” Business Standard, Oct. 25, 2018.

[5] Shagun Kapil, “Cash, on delivery: How India has taken up DBT in the times of COVID- 19” Down to Earth, July 12, 2020.

[6] Renjith Mathew, “Personal Data Protection Bill, 2019- Examined through the prism of Fundamental Right to Privacy- A Critical Study” SCC Online Blog, May 22, 2020.

[7] Kavita Shanmugam, “A series of right to be forgotten cases in Courts highlight how India doesn’t have a privacy law” Scroll.in, Mar. 13, 2017.

[8] Selvi v. State of Karnataka, (2010) 7 SCC 263

[9] Shreya Singhal v. Union of India, (2015) 5 SCC 1

[10] Dave v. State of Gujarat, 2015 SCC Online Guj 2019

[11] Supra note 2

[12] Supra note 3

[13] 2017 SCC Online KAR 424

[14] 2017 SCC Online Ker 12320

[15] Shreya Bansal and Deboleena Dutta, “Right to be Forgotten: A critical and comparative analysis” 5.1 RGNUL Financial and Mercantile Law Review 81 (2018).

[16] Supra note 1

[17] (2019) 175 DRJ 660

[18] Supra note 1

[19]Personal Data Protection Bill 2019, India, available at: https://www.prsindia.org/sites/default/files/bill_files/Personal%20Data%20Protection%20Bill%2C%202019.pdf (last visited on February 15, 2021).

[20] Toms College of Engineering v. Union of India Represented by Secretary to Government, Ministry of Communication and IT, Department of Electronics and Information Technology and Others, 2020 SCC Online Ker 2346 

[21] General Data Protection Regulation 2016 European Union, available at: https://gdpr-info.eu/ (last visited on February 15, 2021).

Author: Aniket Rai, U.P.E.S., Dehradun

Editor: Kanishka VaishSenior Editor, LexLife India.