Privacy, Data Protection and Retention
Data Protection Commissioner v. Facebook (Schrems II)
In Progress Mixed Outcome
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On 23 August 2021, the High Court of Delhi upheld an actor’s right to privacy under Article 21 of the Indian Constitution and directed internet intermediaries as well as websites to take down the explicit videos of the actor which had been uploaded on to multiple video-sharing platforms without her consent. The actor sued the defendants after they failed to remove multiple explicit clips of her, which were originally filmed for the purposes of a potential lead role in a web series. While the producer of the videos took down his footage soon after the actor complained, the defendants did not – which the actor argued was in breach of her right to be forgotten and, more broadly, her right to privacy. While the actor may have consented to the shooting, the Court found her consent to have since been expressly withdrawn, as the producer of the series had also removed the videos upon her request. Although the Court was conscious that there is no statutory right to be forgotten, it ultimately held that the actor’s right to privacy deserved protection. This was especially so following the clear and immediate effect on, and irreparable harm to, her personal and professional life, when the videos depicting her in a sexual nature had been circulated against her will.
The plaintiff is a well-known actor in the Indian television and film industry, specifically in Bengali films. She was approached by a renowned Indian film producer, Ram Gopal Verma Studios, to film a web series and was promised the lead role. On this basis, she participated in the creation of the web series’ demonstration video/trailer – which included explicit scenes of complete, frontal nudity (Suit Videos). The project was later shelved, meaning the series was never produced.
In December 2020, the plaintiff discovered that the producer had uploaded the Suit Videos to his YouTube channel and website. She immediately reached out to the producer, requesting him to remove the videos, and he soon complied. Nevertheless, despite removal of the content by the producer and without the plaintiff’s consent, a handful other people (listed as Defendant Nos. 1-36 in the suit) uploaded the Suit Videos on different websites, some of which hosted pornographic content. Some of the Suit Videos were also edited to add obscene, objectionable and pornographic commentary. As a result of these Suit Videos circulating on the internet, the plaintiff had to face constant harassment by anonymous callers.
The plaintiff applied anonymously to the Court seeking interim protection against the publication, streaming or other broadcasting of the Suit Videos, through a complete take down of the Suit Videos. The suit was premised on the fact that the Suit Videos infringed her privacy, resulted in a loss of her reputation and were of great prejudice to her career. The series of defendants to the case included certain websites, internet service providers, and search engines.
Justice Asha Menon delivered the judgment for the Court. The main issue before the Court was whether the publication of the Suit Videos by the defendants infringed the plaintiff’s right to privacy to the extent that she should be granted interim relief.
The plaintiff’s arguments
The plaintiff argued that the right to be forgotten has been recognised as an inherent and integral aspect of right to privacy by the Indian Supreme Court in Justice KS Puttuswamy and Anr. v. UOI and Ors., (2017) 10 SCC 1, and that she was entitled to her privacy as a fundamental right. She noted that different Indian High Courts have recognised this right and granted interim relief in cases where the right to be forgotten is concerned, (such as in Jorawer Singh Mundy v. Union of India, 2021 SCC OnLine Del 2306; Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd., 2019 SCC Online Del 8494; and Subhranshu Rout v. State of Odisha (2020) SCC Online Ori 878).
Further, the plaintiff referenced Rule 3 (2)(b) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Rules 2021). This requires intermediaries to ‘take all reasonable and practicable measures to remove or disable access’ to any content it hosts, stores, publishes or transmits that “exposes the private area of such individual” or shows them engaging in sexual conduct within 24 hours from the receipt of a complaint from any individual. These “intermediaries” include the defendant websites (i.e., Defendant Nos. 1-36), internet service providers (ISPs) (i.e., Defendant No. 37-68) and search engines (i.e. Defendant No. 69 & 70 (Google search engine)). Given this legal mandate, the defendants were thus obliged to take all “reasonable and practicable measures’ to remove the Suit Videos which prima facie show the plaintiff in “full nudity.”
Lastly, the plaintiff relied upon the Delhi High Court decision in X. v. Union of India and Ors., W.P.(CRL) 1082/2020, where the defendants, including Google, were directed to remove the URLs/ websites within 24 hours under an interim order. The plaintiff summarised that the three-part test for the grant of an interim injunction i.e., (a) prima facie case, (b) balance of convenience and (c) irreparable injury were satisfied by the plaintiff. Therefore, the Court ought to issue an interim injunction order against the defendants.
The defendants’ arguments
Out of the large handful of defendants, only Nos. 69 and 70 (Google) opposed the grant of interim relief. The defendants argued that they were unaware of any agreement that permitted the broadcast of the Suit Videos, and, given that the plaintiff had consented to filming the Suit Videos, it must be decided if the defendants were under any obligation to prevent the videos’ republication.
Further, the defendants argued that the plaintiff had no valid statutory protection to enforce the right to be forgotten. They relied on Karthick Theodre v. Registrar General, 2021 SCC OnLine Mad 2755, Subhranshu Rout (Supra), which held that there was no such right to be forgotten and thus no statutory law in that regard. Instead, the plaintiff should have approached the publishing platforms to take down the Suit Videos (instead of this search engine defendant). The defendants also relied on case law showing that courts had rejected the disabling of search results in the manner sought by the plaintiff (Dharamraj Bhanushankar Dave v. State of Gujarat, 2017 SCC OnLine Guj 2493; Anchit Chawla v. Google India and Ors., WP(C) 13921/2018)).
Finally, the defendants argued that the plaintiff could not rely upon neither the right to be forgotten nor Rule 3(2)(b) of the Rules 2021 to take down the Suit Videos, as she had consented to their filming. Further, Rule (3)(2)(b) required the victim or an authorised representative to complain to the intermediary, which was not satisfied in the present case. They further submitted that Rule 3(3)(b) should be read alongside Sections 67 and 67A of the Information Technology Act, 2000, which excluded material that was published in the interest of science, literature, art or learning or other objects of general concern.
In addition to the applicable laws listed in the parties’ arguments above, the thrust of the argument advanced by the Plaintiff is premised on right to privacy which is enshrined in Article 21 of the Indian Constitution and states that “no person shall be deprived of his life or personal liberty except according to a procedure established by law.” The scope of this article, by way of judicial precedents, has been found to guarantee the right to a dignified life, and thus covers a variety of rights within its remit, including the right to privacy.
The Court’s findings
Firstly, the Court acknowledged that this matter “requires consideration in greater depth” [para. 14] and as such, the “maintainability” of the case and the nuances of many of its legal arguments must wait until after pleadings have been completed (i.e. at a later date).
Nevertheless, the Court held that the Suit Videos were of an explicit nature, as of the kind stated in Rule (3)(2)(b) of the Rules 2021. As such the Court rejected the defendants’ argument that because the plaintiff had consented to the filming of the Suit Videos, she would not be entitled to any legal recourse or other relief. Even if the plaintiff did voluntarily film the Suit Videos (and for consideration), she had clearly stated that she had not agreed to license any of the URLS, websites or search engines to publish and transmit those videos to YouTube. The Court endorsed Zulfiqar Ahman Khan (Supra), which had illustrated the severe impact of a publication (in that case, certain articles) on the personal and professional life of the plaintiff, and the need to issue interim orders to stop republication of the content to prevent “further irreparable damage” [para. 16]. The Court drew parallels between Zulfiqar Ahman Khan (Supra and the present case, stating that the content has “a clear and immediate impact on the reputation of the person seen in the videos in a state of nudity” [para. 16].
Indeed, the Court found it significant that the producer of the Suit Videos took down the videos from his YouTube channel and website following a complaint by the plaintiff, thus showing that he “respected her decision and protected her sentiments” [para. 16]. If the defendants were also circulating that content “for obvious monetary and other prurient benefits” [para. 15], the plaintiff should not be denied interim relief on the same grounds. As the Court reasoned, even if he did not comply with the request, the producer of the Suit Videos could have at least claimed that the plaintiff had consented to the nudity – the defendants had no such consent to rely on.
In relation to the right to be forgotten, the Court acknowledged that neighbouring High Courts in Madras and Orissa had found no such statutory right. Still, the Court here refused to come to any final conclusions on that point. Instead, it endorsed the aforementioned judgment in Zulfiqar Ahman Khan (Supra), which held that the right to be forgotten and the right to be left alone are “inherent aspects” of the right to privacy [para. 17]. As such, the Court found that the plaintiff’s right to privacy should be protected, given that the circulation of the Suit Videos had a clear and immediate impact on the Plaintiff’s reputation – especially when the videos were of an explicit nature and the circulation was against her will.
The Court held that, in light of all the circumstances, the plaintiff should be entitled to be “left alone” and “forgotten” – and thus entitled to her right to privacy [para. 18]. An interim order was passed against the defendants, directing them to take down all the Suit Videos (including any audio or any other clips that may have been shown) from their websites, channels, digital platforms and/or search engines, and to stop uploading, publishing, streaming, transmitting, broadcasting or communicating the Suit Videos (or any part of them) to the public. They were given 36 hours from the date of this order to do so. The plaintiff was also given the right to communicate the order to any other platforms who may be found to be publishing, streaming or transmitting the Suit Videos.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This interim decision of the High Court has significant importance until appealed against and modified by a larger bench of the High Court. The decision considers right to be forgotten as an essential and inherent aspect of an individual’s right to privacy which is recognised as a fundamental right under Article 21 of the Indian Constitution. The decision has a significant impact and influence on all other constitutional as well as lower courts which are faced with the legal issue of enforcing right to be forgotten, particularly in sensitive cases, despite the absence of any statutory protection to the right. Indeed, in this case the Court categorically held that the right to privacy of the Plaintiff has to be protected, “especially when it is her person that is being exhibited, and against her will.” The case also casts an impact on the legislature, highlighting the need to enforce and implement the Personal Data Protection Bill 2019 so that right to be forgotten can be effectively given effect to, without it being merely an exception in cases of judicial intervention.
Although the decision technically limits freedom of expression by ordering the Suit Videos to be taken down, it is fundamentally not at odds with the right to freedom of expression in a democratic society. Rather, as has been stipulated in countless judgments worldwide, the rights to privacy and to freedom of expression can coincide and coexist naturally, so long as the rights of the individual are sufficiently protected and the need for disclosure is not in the public interest. In this case, the right to privacy was clearly paramount and the Court considered there was no valid argument (at least in the interim) to maintain the Suit Videos online for public viewing, at great personal and professional expense to the plaintiff.
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