Information in public domain is like toothpaste, can’t get it back once it is out of the tube: Orissa High Court calls for right to be forgotten

Lamenting the lack of a mechanism to permanently delete information from the internet in order to safeguard the right to be forgotten, the Orissa High Court on Monday appealed for a debate on the subject (Gugul v. State of Odisha).

The Bench of Justice SK Panigrahi noted that despite strong penal sanction against the act of transmitting offensive or harmful content online, there was no way to remove the material in order to protect the privacy of the person harmed.

The Court was hearing a bail application moved by a person who videographed intimate photographs of his sexual assault on a woman. After the victim revealed the instance to her parents, the petitioner opened a fake Facebook account in her name and uploaded her videos and photographs online.

Despite repeated requests for the videos to be taken down, and a complaint being registered in the case, the police was slow to take action, the order records.

Noting that insensitive behaviour online was on the rise, the Court emphasized that it was necessary to uphold the rights of the victim. The legislative framework as it stood did not provide a mechanism to permanently erase data, the Court said.

Citing cases in other jurisdictions that upheld the importance of the 'right to be forgotten', the Court stated that a similar legislative framework was missing in India, despite the right to privacy being upheld in KS Puttaswamy v. Union of India. The Court also cited a number of High Court decisions that directed various internet platforms to take down offensive material.

Calling for a debate on the possibility of enforcing the right to be forgotten, the Court stated,

"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 legal possibilities of being forgotten on line or off line cries for a widespread debate."

The Court, however, did note that the right to be forgotten in terms of the ability of an individual to delete or correct the disclosure of personal information on the internet has been added as a statutory right in the Personal Data Protection Bill, 2019.

While the petitioner in the case claimed that the sexual intercourse was consensual, the woman claimed that she was threatened and blackmailed with death if she revealed the assault to anyone.

The Court noted that even if there was a consensual relationship between the two at first, it had not continued in the same vein. The order reads,

"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."

On the right to be forgotten, the Court noted that women seemed to be at the receiving end of harassment online.

"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 cyberspace unhindered."

The petitioner had also submitted that he wanted to marry the petitioner. However, the Court found that the victim was at the receiving end of an unabated mental torture from the blackmailing tactics used by the petitioner.

On these terms, the bail application was rejected.

A case seeking recognition of the right to be forgotten is pending before the Kerala High Court presently.

Read the Order here: