Right To Be Forgotten: Enlarging The Ambit Of Right To Privacy

KEY TAKEAWAYS

• The Delhi High Court has given an interim relief to a Bengali actress whose nude video was being circulated on websites without her consent.
• The Court observed that a detailed discussion needs to be undertaken on the issue of providing the right to be forgotten and the right to be left alone as a part of the right to privacy under the Constitution of India.

INTRODUCTION

The High Court of Delhi recently ordered an online video streaming website to pull down some obscene content related to a Bengali actress, citing that her right to be forgotten, being an inherent part of her right to privacy, was being violated as a result of such streaming. This order has opened the floodgates to a new discussion i.e., whether the right to be forgotten should be considered to be a part of the right to privacy under the scheme of Fundamental Rights as enshrined in the Constitution of India. This article shall be an attempt to understand the order passed by the Delhi HC and the impact it may have on future cases.

FACTS OF THE CASE

The case in which the order under the lens was passed, is a case involving the uploading and online streaming of nude video of a Bengali actress, without her permission. The facts were that a Bengali actress was called by a famous director-producer to shoot a video scene for a new web series. The scene involved full-frontal nudity, to which the actress consented and shot the scene. It so happened that while the web series never went into production, the nude scene shot by the actress was uploaded by the production company on the YouTube channel. When this came to the notice of the actress, she requested the production company to delete the video, and her request was complied with. It later came to the knowledge of the actress that while the video was deleted from the channel of the producer, some other channels and various other websites had also uploaded the video on their platforms. Thereafter, the actress approached the Court seeking to pull down the video from the websites.

ARGUMENTS OF THE PARTIES

The main contention of the petitioner (actress) was that the video uploaded by other platforms have edited it to include some contact numbers etc, which makes people call and harass her and that the presence of such video was a threat to her dignity and also encroached upon her right to privacy. The counsel for the petitioner referred to the K.S. Puttaswamy case, in which it was held that the right to privacy is an integral fundamental right of a person. It was further contended by the petitioner that she was entitled to enforce her right to be forgotten, in the sense that while the uploading of the videos would make the people remember her in a vulgar manner, pulling down of the videos would ensure that in due time, people will forget that the incident happened, after which she would be able to live a normal life. Reliance was placed on some cases decided by the Delhi HC itself, like Jorawer Singh Mundy v. Union of India (2021) and Zulfiqar Ahman Khan v. Quintillion Business Media Pvt. Ltd.(2019), in which the court talked about the right to be forgotten as being a part of the fundamental rights of an individual. Provisions of the IT Act, 2000 were also invoked, particularly Rule 3(2)(b) of the IT Rules, under which, it is the duty of the websites or any other intermediary hosting nude content to delete it within 24 hours of a complaint made by the victim. It was prayed by the petitioner that an interim order be passed directing the websites and other platforms to remove the content from their platforms.

The counsel for the defendants based its arguments on two main points:

i. That the petitioner had consented to be a part of the video, and therefore the defendants were not obligated to remove the video.

ii. That the petition itself was not maintainable as there was no right to be forgotten, which could be availed by the petitioner.

For (i), the counsel argued that while the defendants (websites) were not privy to any information with regards to the commercial nature of the video and the permissions required to publish it. Further, it was contended by the counsel that since the petitioner had consented to be a part of the video and shot it with her free will, there would be no liability of the defendants to remove the video.

For (ii), the counsel referred to various cases decided by various High Courts, like Karthick Theodre v. Registrar General (2021), in which the Madras High Court that since there was no statutory law with respect to the right to be forgotten, the same cannot be considered to be a fundamental right. The counsel also referred to the case of Subhranshu Rout v. State of Odisha (2020), in which the Orissa High Court held that there was no right to be forgotten available in the country and that a victim of online circulation of her nude content would have to approach the websites to get the content removed.

In addition to the above arguments, the counsel for the defendants also argued that Rule 3(2)(b) of the IT Rules has to be read with Sections 67 and 67A, under which any content published to further a better understanding of aspects related to science, literature, art or learning or other objects of general concern was excluded from the dictum of above mentioned rule and the host of such content would be free from the liability of removing it.

OBSERVATION OF THE COURT

After going through the facts and the arguments, the Court observed that the consent of the petitioner to shoot the video did not give the right to the websites to publish the video as the petitioner had consented only to shooting the video and not to its publication. While the production house of the web series also uploaded the video on its YouTube channel without the consent of the actress, the video was removed when she requested it.

It was also observed by the Bench that the issue required a deep analysis with regards to the maintainability and providing the right to be forgotten. The Court conceded that the cases referred to by the petitioner were different in nature, as one of them was a writ petition and the other one was a suit. Therefore, whether the petition under consideration would be maintainable required further discussion. But at the same time, it was the view of the court that the aspect of further discussion cannot deprive the petitioner of the right of getting an interim order in her favour.

Therefore, the court issued an interim order in the favour of the petitioner, directing the intermediaries to pull down or delete all the forms of the video being circulated till the next date of the hearing.

The court also considered the aspect of the impact that such a video can have on the liberty and dignity of the person being seen in the video, as discussed in the Zulfiqar Ahman Khan case. The Court in the case also talked about the right to be forgotten and the right to be left alone as being inherent to the right to privacy under the Constitution. Therefore, the court, in this case, found itself obligated to allow the use of the right in a limited manner by the petitioner, and while further discussions on the right would take place in subsequent hearings, for now at least, the petitioner could enjoy the right to be forgotten and be left alone.

ANALYSIS OF THE ISSUE

The Court has taken a commendable step by providing the right to be forgotten to the petitioner as it did not just blindly play by the book but considered the impact the circulation of the video would have on the dignity of the person in the video. In our society, if a person, particularly a female, becomes a victim of the heinous offence of rape, or voyeurism, or illegal breach of personal data leading to the circulation of some intimate content on the web, they become the victim of another practice: the social stigma arising out of such mishappening. Society, instead of supporting the victim and being concerned for her, publicly humiliates her and her family, to the extent where the victim and her family are forced to relocate. This public embarrassment and humiliation often drive the victim to suicide, with apparently, no one being responsible for it. Further, the presence of such videos on websites makes the victim subject to various unsavoury comments, along with other obscene actions etc. There is a growing need of such a right to be given to such victims wherein the victim can exercise her right to get the videos removed from the websites, which could, to some extent at least, give some reprieve to the victim, giving her a hope that the people would also forget about the video in due time, after which she would be able to live her life with dignity.

But there may be another aspect to providing this right. This right may be claimed by various criminals to get their criminal records and other evidence of their criminality deleted from the public domain. Recently, a TV personality filed a petition in a Court to get the videos of his past drunken behavior and other incidents like a bar brawl, etc., removed from the Internet, claiming that he has now moved on. While it may be true that the person has moved on from such behavior and is trying to do good in his life, but, should the public not have the right to have the knowledge about the behavior of such personalities, considering that some of them become the role models of an entire generation. Further, the acts of which the videos such personalities seek to get deleted were not a result of any unfortunate incident, but a voluntary intoxication, which gives them no right to get a remedy, if the principles of volenti non fit injuria and who seeks equity must come with clean hands were to be considered. In addition to this, various criminals may demand that their history sheet as maintained by the police be removed as the presence of a record would continuously remind the society of their criminality. This cannot be allowed to happen as it would end up exonerating the criminals of their liability which they have towards society.

Therefore, it is essential that if such a right would be interpreted to be a part of the right to privacy, reasonable safeguards against its misuse should also be created so that a good provision does not end up becoming a tool used by the bad elements of the society to achieve their own ends.

CONCLUSION

After going through the case and other relevant factors, it can be concluded that the right to be forgotten and the right to be left alone are the need of the hour and that various discussions across platforms need to take place to give completeness to the idea.