Allowing Videos/Photos Of Rape Victims To Remain On Social Media Is Violative Of Their Fundamental Right To Privacy: Orissa HC Moots Statutory Recognition Of 'Right To Be Forgotten'

There is an unprecedented escalation of such insensitive behavior on the social media platforms, the judge noted. 

In fact, 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. Under the Indian Criminal Justice system a strong penal action is prescribed against the accused for such 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. The different types of harassment, threats and assaults that frighten citizens in regard to their online presence pose serious concerns for citizens. There is an unprecedented escalation of such insensitive behavior on the social media platforms and the victim like the present one could not get those photos deleted permanently from server of such social media platforms like facebook. Though the statute prescribes penal action for the accused for 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. There is a widespread and seemingly consensual convergence towards an adoption and enshrinement of the right to get deleted or forgotten but hardly any effort has been undertaken in India till recently, towards adoption of such a right, despite such an issue has inexorably posed in the technology dominated world. 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. It is also an undeniable fact that the implementation of right to be forgotten is a thorny issue in terms of practicality and technological nuances. In fact, it cries for a clear cut demarcation of institutional boundaries and redressal of many delicate issues which hitherto remain unaddressed in Indian jurisdiction. The dynamics of hyper connectivity- the abundance, pervasiveness and accessibility of communication network have redefined the memory and the prescriptive mandate to include in the technological contours is of pressing importance.

Right to enforce the right to be forgotten as a right in rem

In most of the cases, like the present one, the women are the victims. It is their right to enforce the right to be forgotten as a right in rem. 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. 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. Undoubtedly, such an act will be contrary to the larger interest of the protection of the woman against exploitation and blackmailing, as has happened in the present case. The sloganeering of "betibachao" and women safety concerns will be trampled.

The court noted that the Section 27 of the draft Personal Data Protection 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, the court noted. The court has also referred to judgments dealing with the right to be forgotten delivered by foreign courts.

Many victims find the criminal justice system complex, confusing and intimidating. Many do not know where to turn for help

While dismissing the bail application, the judge further said:

"In the instant case, prima facie, it appears 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. Statement recorded under Section 161 of Cr. P.C. of the victim girl is also clearly in sync with FIR version. Considering the heinousness of the crime, the petitioner does not deserve any consideration for bail at this stage. However, this Court is of the view that 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. Regardless, many victims find the criminal justice system complex, confusing and intimidating. Many do not know where to turn for help. As in the instant case, the rights of the victim to get those uploaded photos/videos erased from Facebook server still remain unaddressed for want of appropriate legislation. However, 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. In such cases, either the victim herself or the prosecution may, if so advised, seek appropriate orders to protect the victim's fundamental right to privacy, by seeking appropriate orders to have such offensive posts erased from the public platform, irrespective of the ongoing criminal process."

Case: Subhranshu Rout @ Gugul vs. State of Odisha [BLAPL No.4592 OF 2020]
Coram: Justice SK Panigrahi
Counsel: Advocates Bibhuti Bhusan Behera and S. Bahadur, Adv Manoj Kumar Mohanty

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