Orissa High Court: S.K. Panigrahi, J., while addressing the instant case highlighted the significance of “Right to be forgotten” and observed that,
“…many victims find the criminal justice system complex, confusing and intimidating.”
The instant application was preferred under Section 439 of the Criminal Procedure Code, 1973. Offences pertaining to which the application was preferred were punishable under Sections 376, 292, 465, 469, 509 of Penal Code, 1860 read with Sections 66, 66(C), 67, 67(A) of the I.T. Act, 2000.
Factual Matrix
In the FIR set forth on 03-05-2020, It was alleged that the informant was in love with the petitioner for a period of about one year.
Both the petitioner as well as the informant were village mates and classmates. One day, petitioner went to the house of the informant and taking advantage of her being alone, she was raped and the gruesome incident was recorded on his mobile phone.
Petitioner threatened to kill the informant if she disclosed the incident to her parents and also the photos and videos would be made viral.
Further, it was alleged that the petitioner had maintained physical intimacy with the informant.
Objectionable Photos on Facebook
Upon the informant narrating the incident to her parents, the petitioner opened a fake Facebook ID in the name of the informant and uploaded all the objectionable photos using the said ID in order to further traumatize her.
Initially, the police failed to take any step and portrayed unsoundness of the police system. After much difficulty, finally, the informant could get the present FIR lodged.
Analysis, Law and Decision
Prima facie it appeared to the Court that the petitioner uploaded objectionable photos/videos on a social media platform and on police intervention the same was deleted.
“…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.”
Right of the Victim
Court observed that, the Criminal Justice system prescribes a strong penal action against the accused of the heinous crime but there is no mechanism available with respect to the right of the victim to get the objectionable photographs deleted from the server of the Facebook.
Bench adding to the issue of the right of the victim also stated that there is an unprecedented escalation of insensitive behavior on the social media platforms and the victim like the present one could not get those photos deleted permanently from the server of such social media platforms like Facebook.
Right to Privacy | Right to get Deleted
The statute prescribes penal action for the accused of such crimes, the rights of the victim, especially, her right to privacy which is intricately linked to her right to get deleted in so far as those objectionable photos have been left unresolved.
Right to be Forgotten
Bench notes that 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. Whereas, the legal possibilities of being forgotten online or offline cries for a widespread debate.
Adding to the above, it was also stated that every single time, it cannot be expected that the victim shall approach the court to get the inaccurate data or information erased which is within the control of data controllers such as Facebook or Twitter or any other social media platforms.
In the case of Google Spain SL v. Agencia Espanola de Protection de Datos, (AEPD), C-131/12 [2014] QB 1022, the European Court of Justice ruled that the European citizens have a right to request that commercial search engines, such as Google, that gather personal information for profit should remove links to private information when asked, provided the information is no longer relevant. The Court, in that case, ruled that the fundamental right to privacy is greater than the economic interest of the commercial firm and, in some circumstances; the same would even override the public interest in access to information.
Relying on the decision of the Supreme Court on K.S. Puttaswamy (Privacy-9J), (2017) 10 SCC 1, Court stated that at present,
“…there is no statue which recognizes right to be forgotten but it is in sync with the right to privacy.”
However, the Ministry of Law and Justice, on recommendations of Justice B.N. Srikrishna Committee has included the Right to be forgotten which refers to the ability of an individual to limit, delink, delete, or correct the disclosure of the personal information on the internet that is misleading, embarrassing, or irrelevant etc. as a statutory right in Personal Data Protection Bill, 2019.
Supreme Court in the decision of X v. Hospital ‘Z’, (1998) 8 SCC 296, recognized an individual’s right to privacy as a facet Article 21 of the Constitution of India. It was also pertinently held that the right which would advance the public morality or public interest would alone be enforced through the process of the court, for the reason that moral considerations cannot be kept at bay and the Judges are not expected to sit as mute structures of clay in the halls known as the courtroom but have to be sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day.”
Delhi High Court in the decision of Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd., 2019 (175) DRJ 660 also recognised the “right to be forgotten” and ‘Right to be left alone’ as an integral part of individual’s existence.
Karnataka High Court in {Name Redacted} v. Registrar General, WP (Civil) Nos. 36554-36555/2017 decided on 04-01-2018 recognized “Right to be forgotten” explicitly, though in a limited sense. Petitioner’s request to remove his daughter’s name from a judgment involving claims of marriage and forgery was upheld by the Court. It held that recognizing the right to be forgotten would parallel initiatives by ‘western countries’ which uphold this right when ‘sensitive’ cases concerning the ‘modesty’ or ‘reputation’ of people, especially women, were involved.
Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011
Bench observed that the above-stated was the first legal framework which recognized the need to protect the privacy of personal data, but failed to capture the issue of the “Right to be Forgotten”.
Capturing the images and videos with consent of the woman cannot justify the misuse of such content once the relation between the victim and accused gets strained as it happened in the present case.
Adding to its observations, Court stated that
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.
High Court also stated in reference to the Personal Data Protection Bill that, Section 27 of the draft Bill, 2018 contains the right to be forgotten. Under Section 27, a data principal (an individual) has the right to prevent continuing disclosure of personal data by a data fiduciary. Court points out that the said Bill carves out the “right to be forgotten”.
Bench prima facie stated that the petitioner has not only committed forcible sexual intercourse with the victim girl but has also deviously recorded the intimate sojourn and uploaded the same on a fake Facebook account.
In view of the heinousness of the crime, petitioner does not deserve any consideration for bail at the present stage.
“Indian Criminal Justice system is more of a sentence oriented system with little emphasis on the disgorgement of victim’s loss and suffering, although the impact of crime on the victim may vary significantly for person(s) and case(s)– for some the impact of crime is short and intense, for others the impact is long-lasting.”
Court in regard to the objectionable photos stated that, allowing such objectionable photos and videos to remain on a social media platform, without the consent of a woman, is a direct affront on a woman’s modesty and, more importantly, her right to privacy.
Bench in view of the above was not inclined to enlarge the petitioner on bail. [Subhranshu Rout v. State of Odisha, 2020 SCC OnLine Ori 878, decided on 23-11-2020]
Advocates who appeared in the matter:
For the Petitioner: Bibhuti Bhusan Behera and S. Bahadur, Advocates
For the Opposite Party: Manoj Kumar Mohanty, Additional Standing Counsel