Case Summary and Outcome

The High Court of Orissa, India reaffirmed the need for the legislative recognition of the right to be forgotten while refusing to grant bail to a petitioner in a rape case. The accused was charged with raping a woman and uploading a video of the incident on Facebook to harass the victim, and he then applied for bail in the High Court. The Court refused to grant bail due to the heinousness of the crime, but also commented that the right to be forgotten is an integral part of the right to privacy and that there must be a mechanism through which a victim can protect her privacy by having the content deleted from servers of intermediaries. The Court held that in cases where a victim’s right to privacy has been gravely violated, the victim or the prosecution may approach a Court to seek appropriate orders and have the infringing content removed from public platforms – irrespective of the ongoing criminal process.

Facts

On May 3, 2020, a young man, Subhranshu Rout, visited his classmate, Rupali Amanta, and raped her. Rout warned Amanta not to disclose the incident to her family or the police or else he would “eliminate her and also make her intimate scenes viral on social media” [para. 4]. He later created a fake Facebook profile in Amanta’s name and uploaded videos of the incident. After the police intervened, Rout deleted the content from Facebook.

Rout was charged with various offences under the Indian Penal Code, 1860 including rape (section 376), distribution of obscene content (section 292), forgery (section 465), forgery to harm reputation (section 489) and outraging a woman’s modesty (section 509). Rout was also charged under the Information Technology Act, 2000 with computer-related offences (section 66), identity theft (section 66C), publishing obscenity (section 67), and publishing sexually explicit content (section 67A).

Rout applied for bail in the High Court of Orissa at Cuttack.

Decision Overview

The judgment was delivered by Justice S.K. Panigrahi, as a single-judge judgment of the High Court. The question before the Court was whether to grant bail to Rout, but the Court also examined the status of the right to be forgotten in Indian law.

Rout submitted that he and Amanta were both consenting adults, that they were in a physically intimate relationship, and that he intended to marry Amanta [para. 2-3].

The prosecution opposed bail on the grounds of the seriousness of the crime and the fact that the investigation was still ongoing. It argued that Rout had forcibly committed sexual intercourse, recorded the incident and used the recording to threaten and blackmail Amanta.

The Court focused on the impact on Amanta of the publication of the videos and images on Facebook and the status of the right to be forgotten in India. The Court commented that – although Rout had removed the Facebook video after the police intervention –  “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” [para. 5].

In examining the position in other parts of the world, the Court mentioned the European Union’s General Data Protection Regulation’s inclusion of the right to be forgotten – specifically article 17, which grants persons the right to be forgotten, and article 5, which requires data controllers to take reasonable measures to erase or rectify inaccurate information without delay. The Court also referred to the English case of NT1 & NT2 v. Google LLC [2018] EWHC 799 (QB) and the European Court of Justice cases of Google Spain v. AEPD Case C-131/12 (2014) and Google LLC v. CNIL Case C-507/17.

The Court acknowledged that the question of whether the right to be forgotten should be recognized in Indian law had been addressed by various High Courts. It referred to the decisions of Vasunathan v. The Registrar General, High Court of Karnataka 2017 SCC OnLine Kar 424, Khan v. Quintillion Business Media Pvt. Ltd 2019 (175) DRJ 660 and {Name Redacted} v. The Registrar General Writ Petition (Civil) Nos. 36555.2017 (2018) which had all recognized the right to be forgotten “in line with the trend in Western countries where it is followed as a matter of rule” [para. 12]. The Court also acknowledged that the High Court of Gujurat in Dave v. State of Gujurat [MANU/GJ/0029/2017] had adopted “a contrary and narrow approach” [para. 12]. The Court also mentioned the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 – which it described as “India’s first legal framework recogniz[ing] the need to protect the privacy of personal data” – but noted that these Rules did not address the right to be forgotten [para. 13]. It did note, however, that section 27 of the draft Personal Data Protection Bill, 2018 does recognize the right to be forgotten but that the Bill had not been finalised or brought into force yet.

Indian jurisprudence – specifically the judgments of the Supreme Court in Puttaswamy v. Union of India 2017 (10) SCALE 1 and Mr X v. Hospital Z (1998) 8 SCC 296 – has recognised the right to privacy as an integral part of the right to life under article 21 of the Constitution, and the Court commented that the “right to be forgotten is in sync with the right to privacy” even though there was no statute providing for the right to be forgotten [para 10].

Through its assessment of the foreign and national status of the right to be forgotten, the Court reaffirmed the need for the legislative recognition of the right to be forgotten in India as an integral part of the right to privacy under article 21 of the Constitution.

The Court observed that India’s justice system is sentence-oriented with little emphasis on the victim’s loss and suffering or the victim’s privacy in not having the ability to have “objectionable photographs” removed from social media [para. 5]. The Court noted that “[t]here is a widespread and seemingly consensual convergence” towards the adoption of the right to be forgotten but that efforts in India have been slow to protect that right [para. 5]. The Court recognized the complex nature of the debate, but stressed the importance of responding to technological developments.

In examining the facts of the present case, the Court emphasized the issue of consent in the processing and collection of data but stated that the issue of consent does not arise in the present case because “[n]o person much less a woman would want to create and display gray shades of her character”, and “[c]apturing 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” [para. 13]. The Court reiterated the importance of the right to be forgotten, noting that if it 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” [para. 13]. It added that it would be unreasonable to expect a victim to approach the court in every instance when she wanted inaccurate data/information to be removed by an online intermediary – especially as victims find the “justice system complex, confusing and intimidating” [para. 15].

The Court noted the heinous nature of the alleged crime and the impact of uploading objectionable photographs onto social media and the infringement of Amanta’s right to privacy. As a result, the Court held that Rout did “not deserve any consideration for bail at this stage” and that in cases of violation of privacy, the victim or the prosecution may “seek appropriate [Court] orders to protect the victim’s fundamental rights” and have such content erased, irrespective of the ongoing criminal process [para. 15].