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Objectionable images of rape victims on social media: Orissa HC makes a case for the right to be forgotten

The Orissa High Court on Monday emphasised the need to recognise the right to be forgotten, noting that the presence of objectionable images and videos of rape victims on social media is a violation of their right to privacy. The High Court was hearing the bail application of a man accused of raping a woman, capturing her intimate pictures, and later uploading those on Facebook. LiveLaw first reported this.

The court said that currently, there is no mechanism for a victim to be able to get their objectionable photographs deleted from social media platforms like Facebook. “The different types of harassment, threats and assaults that frighten citizens in regard to their online presence pose serious concerns for citizens,” it added.

“In most of the cases, like the present one, the women are the victims. It is their right to enforce the right to be forgotten as a right in rem,” the court held. “Presently, there is no statute in India which provides for the right to be forgotten/getting the photos erased from the server of the social media platforms permanently”, the court held, and said that this right is in sync with the right to privacy.

The court held that while a person can be penalised for uploading someone’s sensitive pictures on social media, issues related to their right to privacy will remain unresolved. It then added:

“If the right to be forgotten is not recognized in matters like the present one, any accused will surreptitiously outrage the modesty of the woman and misuse the same in the cyber space unhindered. Undoubtedly, such an act will be contrary to the larger interest of the protection of the woman against exploitation and blackmailing, as has happened in the present case. The sloganeering of “betibachao” and women safety concerns will be trampled[…]In fact, the information in the public domain is like toothpaste, once it is out of the tube one can’t get it back in and once the information is in the public domain it will never go away.” — Orissa High Court

The court noted that Europe Union’s General Data Protection Regulation recognises the right to be forgotten, and that “there is a widespread and seemingly consensual convergence towards an adoption and enshrinement of the right to get deleted or forgotten”. However, at the same time, “hardly any effort has been undertaken in India till recently, towards adoption of such a right, despite such an issue has inexorably posed in the technology dominated world,” the court held.

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Acknowledged technical challenges with right to be forgotten: The court also recognised that the implementing the right to be forgotten is a “thorny issue” in terms of practicality and technological nuances. “In fact, it cries for a clear cut demarcation of institutional boundaries and redressal of many delicate issues which hitherto remain unaddressed in Indian jurisdiction. The dynamics of hyper connectivity- the abundance, pervasiveness and accessibility of communication network have redefined the memory and the prescriptive mandate to include in the technological contours is of pressing importance,” it added.

What is the ‘right to be forgotten’?

The right to be forgotten is often considered a subset of the right to privacy. It is the right to have private information about a person to be removed from the internet, specifically from search results. It is based on the concept of permanence on the internet — that nothing is ever forgotten. This right allows individuals to erase content on the internet that is obsolete, humiliating and generally damaging to their reputation.

The right is said to have originated in the Google Spain case in 2014, when the Court of Justice of the European Union (CJEU) had ordered the search giant to remove links related to data about the forced sale of property to an individual. The court essentially made search engines responsible for the processing of personal data that appears on other websites. The right has since been provided in the European Union’s General Data protection Regulation (GDPR) passed in 2018.

India currently doesn’t recognise the right to be forgotten, and experts have argued that the right can be potentially abused as a means to curb the right to free speech. Read more about it here.

What’s the discussion in India?

India is yet to recognise the right to be forgotten, although the Personal Data Protection Bill, 2018 did talk about it. The proposed bill did not provide individuals with the right to erasure, but only the right to restrict or prevent information disclosure.

The BN Srikrishna Committee’s report on the bill had proposed that the right be adopted, but not before noting the several pros and cons of such a decision. The report noted that the internet has a “timeless memory”, and hence the ability to forget is seriously denuded.” This, it said, was not entirely undesirable, indicating that it would help prevent attempts to rewrite history. At the same time, it said, “The individual’s desire to forget is an expression of autonomy that may be worthy of protection.”

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However, the report also noted that the deletion of information could take away individuals’ right to access information as well as infringe upon the freedom of the press. After a detailed analysis of these issues, the committee suggested a five-point system of checks and balances for the enforcement of this right. The applicability of this right would hence depend on the sensitivity of the data; degree of accessibility of the data; whether the person whom this data belongs to is a public figure and the relevance of this data to the public. The committee made it clear that the focus should be on the accessibility of this information, and not the information itself.

The committee had commented on who should be the adjudicator that consider requests under this right. It was critical of the EU, where data controllers (fiduciaries) such as Google are supposed to consider these requests. It said this amounted to “privatisation of regulation”, since private companies would become censors of private speech, indicating at their desire to avoid legal troubles. The committee also suggested that adjudicators who consider these requests should perform a balancing test between removing requested information and the freedom of expression and speech.

However, these suggestions were largely ignored in the subsequent revision and the latest version of the PDP Bill in 2019. This bill is currently under consideration of a joint Parliamentary Committee, which is expected to submit its report in the winter session of the Parliament.

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