THE SIGNIFICANCE OF RIGHT TO BE FORGOTTEN AT CONTEMPORARY TIMES

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

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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.

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