ISSN 2330-717X

Laws To Claim The Right To Be Forgotten Must Be In Place – OpEd

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That a law is expected to be in sync with the need of the hour is a given. That it must and ultimately as a rule, catch up with the need is an integral part of the very nature of jurisprudence. That it, till then, cannot, is the unavoidable issue in contention. During this period, there’s academic and media reportage of the need, analysis of the offence that needs to be addressed, deliberation over the lacunae in the system and then formulation of legislation to tackle the issue. This period, from the time the need of the hour is identified till the letter of the law formulated, comprises a grey area. In this interlude, the law cannot catch up with the offender simply because the act is not, for practical purposes, yet an offence in the eyes of law.

Controls on the internet, censorship of Over The Top (OTT) content, accountability of Social Media platforms and streaming partners all come under this grey area, till legislation is ultimately put in to place to provide checks and balances. Till then, there’s discussion, deliberation and debate on rights and liabilities, on freedoms and liberties. It’s only when a sprinkling of stakeholders, mostly powerful, begin to move court that an issue is perceived as vital and the need to address it through interventional judgement first and then pertinent legislation, identified.

In an undated video that went viral recently, a young girl was recorded slapping a taxi-driver on a busy street in Uttar Pradesh capital city Lucknow, even breaking his mobile by hurling it to the ground while hitting him repeatedly. The video sent ripples on social media. The taxi-driver was seen requesting bystanders to call policewomen to the scene, “Aap log mahila police bulaye,” but the girl continued to assault him repeatedly and that too in full view of a traffic policeman at the spot. The taxi-driver went on, to reportedly be kept in a lockup by the police for a full day and charged with nuisance. It was only after the issue went viral and overwhelming public demand that a complaint was lodged against the woman. 

On being asked about how he felt, the taxi-driver maintained that justice will be met following the complaint but was worried about how his self-esteem would be restored. After all, the video of him being slapped over and over again had already gone viral on the Internet. And that is the issue in question which needs a resolution.

While taxi-driver Sadat Ali Siddiqui will seek justice in his matter after following the due process and obtain it, he may not have the resources to move court and press for removal of the video from online fora.

It may be recalled that in 2015, a student of Delhi’s St Stephens College, Jasleen Kaur posted a picture of Sarvjeet Singh Bedi on social media and called him a harasser. The image of Sarvjeet went viral on social media and he was christened ‘Delhi ka Darinda’ for an act he hadn’t committed. Sarvjeet immediately lost his job, a criminal case was filed against him in Delhi and he was arrested within days of the incident. The charges levelled against him were serious. He was charged with Section 354A that refers to sexual harassment, Section 506 for criminal intimidation and Section 509 for insulting the modesty of a woman.

Four years since the case started, Sarvjeet Singh Bedi was announced “not guilty” by a Delhi court. During the court hearings since 2015, Jasleen Kaur had been absent, her family said that she moved to Canada after the ‘molestation incident.’ Jasleen did apologise to the court later for her absence, citing academic commitments, but the damage had been done.

A year later, Sarvjeet filed a Civil suit for Defamation and sought damages for malicious prosecution and, in 2021, a Criminal Appeal maintaining his prime years were lost owing to the malicious complaint.

Then, even National Broadcasting Standards Authority (NBSA) had said, “Broadcasters cannot condemn as guilty persons accused of having committed a crime or offence when the matter is still under investigation or where the court is yet to decide upon the guilt or otherwise of the accused.” 

A television channel that had reported on the issue, squarely placing the blame on Sarvjeet without a trial, was fined Rs 50,000 for reporting the incident in a biased manner and asked to apologise.

Yet, with regard to the damaging post and ensuing comments across Social Media platforms accusing him of being the perpetrator in a social media trial, there was little he could do then…or now. And, the maligning persists till date.

It may be pertinent here to note that in September 2012, a five-judge Supreme Court bench headed by the-then Chief Justice S H Kapadia, while ruling on whether reporting on a trial can be postponed to ensure a fair trial, had said, “Freedom of expression is not an absolute value under our Constitution. It must not be forgotten that no single value, no matter exalted, can bear the full burden of upholding a democratic system of government. Underlying our Constitutional system are a number of important values, all of which help to guarantee our liberties, but in ways which sometimes conflict. Under our Constitution, probably, no values are absolute. All important values, therefore, must be qualified and balanced against, other important, and often competing, values. This process of definition, qualification and balancing is as much required with respect to the value of freedom of expression as it is for other values. Consequently, free speech, in appropriate cases, has got to correlate with fair trial. It also follows that in appropriate case one right (say freedom of expression) may have to yield to the other right like right to a fair trial.”

This lays down the Constitutional Principle allowing aggrieved parties to seek from appropriate courts the postponement of publication of court hearings.

Last month, Reality Show celebrity Ashutosh Kaushik filed a writ petition in Delhi High Court with an application for ‘The Right To Be Forgotten’ directing respondents namely, the Union of India, Press Council of India, Press Information Bureau, Electronic Media Monitoring Centre and Google to remove his videos, photos, articles from various online platforms as the same were “engendering a detrimental effect on his life and personal liberty.”

Saharanpur-born Ashutosh Kaushik, following his first win at the MTV Hero Honda Roadies Season 5 in 2007, went on to win Big Boss Season 2 in the very next year and then made a series of appearances in television shows even a few movies.   

It may be recalled that the performer was in the news in 2009 when he was held by the Mumbai traffic police for drunken driving. About ten days after Kaushik’s arrest, the Metropolitan Magistrate Court sentenced him to one-day imprisonment, imposed a fine of Rs 3,100 and suspended his driving license for two years. Kaushik was then charged for drunken driving, not wearing a helmet, not carrying his driving licence and failing to obey the police officers on duty. A few years later, he was allegedly involved in a drunken brawl at a party.

His petition, twelve years later, says that he “had to suffer utmost psychological pain for his diminutive acts, which were erroneously committed a decade ago as the recorded videos, photos, articles of the same are available on various search engines/ online platforms.”

In the petition, Kaushik says “people should not be indefinitely reminded of their past mistakes. Even when information is lawfully in the public domain or originally shared by the individual with his or her consent, people have a right to make mistakes without being haunted by them indefinitely. This is already recognised by the law in relation to spent convictions; the same should be true in the digital environment.”

Kaushik’s is the latest in the line of petitions that have been tackled by courts across India even the Supreme Court that have underlined the need to recognise the ‘Right to be Forgotten’ in judgements that have formed viable precedents in legal history. 

The pertinent legislation – the Personal Data Protection Bill – brought to the Parliament first in 2019 and passed on to the Joint Parliamentary Committee (JPC) for examination at the time by BJP Member of Parliament (MP) Meenakshi Lekhi was expected to undergo “complete transformation.”

However, the draft bill was opposed by social media firms, experts even ministers for having “too many loopholes to be effective and beneficial” for both users and companies.

Now, the JPC is expected to submit the report in the first week of the Winter Session that commences in the last week of November 2021. And, till then, the issue of personal data protection will have to be tackled by judicial precedent.

In a recent judgement with far-reaching consequences, Madras High Court’s Justice N. Anand Venkatesh, referring to the Supreme Court’s judgement in the Puttasamy vs Union of India case, recognising the Right To Privacy as a Fundamental Right that can be traced to Article 21 of the Indian Constitution, said that even a person accused of committing an offence and who has been subsequently acquitted from all charges will be entitled for redacting his name from the order passed by Court in order to protect his Right of Privacy.

“Today, the world is literally under the grips of social media. The background of a person is assessed by everyone by entering the name in Google search and collecting the information. There is no assurance that the information that is secured from Google is authentic. However, it creates the first impression and depending upon the data that is provided, it will make or mar the characteristics of a person in the eyes of the society,” Justice Venkatesh further said.

Now the judgement tackles the gist of the issue of privacy and recognises the dangers of Google and impressions formed that could mar the characteristics of a person in the eyes of the society. That said, it’s time the judiciary now weighs the benefits of retaining information regarding one who has even successfully completed a sentence following a charge of an offence against the risks. Rehabilitation is an integral part of punishment and retaining damaging information online also till an uncertain perpetuity may only thwart the process.

The Right to be Forgotten runs collateral to the Right to Life but must be thrown open to legal scrutiny and analysis to apply to a wide range of situations that go even beyond ongoing trials and acquittals. The need to mandate procedural processes enable final judgements – of both conviction and acquittal – direct news-aggregators and social media platforms to update versions to the latest, authenticated version and/or delete all mention and reference to parties unless authenticated by a judicial process, will emerge in time.

The benefits of the Right to Privacy, the Right to be Forgotten as well as consent to redact material are, now, accorded to those who have been acquitted. For the purpose of publication in the media and general information for the public, the revelation of one’s identity, civil and/or criminal actions, litigation and judgements may be highly punitive in effect over and above that what is legally permitted. The benefits of divulging such information may be offset by the risks of punishing even an ‘accused’ over and beyond his legal punishment of ‘imprisonment’ and/or ‘fine.’ Issues of ethics, legality and culpability will come into play should the players proceed with the media coverage.

The Right to be Forgotten has been upheld by the Court of Justice of the European Union which, in May 2014, ruled against Google in a case brought by a Spanish man, Mario Costeja González. Mario had requested the removal of a link to a digitised 1998 article in La Vanguardia newspaper about an auction for his foreclosed home, for a debt that he had subsequently paid.

At first, he tried to have the article removed by complaining to the Spanish Agency of data protection, which rejected the claim on the grounds that it was lawful and accurate yet accepted a complaint against Google and asked Google to remove the results. Google went ahead and sued in the Spanish Audiencia Nacional (National High Court) which, in turn, referred a series of questions to the European Court of Justice. 

The court ruled that search engines are responsible for the content they point to and, concurrently, Google was required to comply with EU data privacy laws. Incidentally, on the very first day of compliance only, Google received 12,000 requests to have personal details removed from its search engine. The judgement, however, is binding only on EU member states and not to the rest of the world.

Ironically, the issue of the Right to be Forgotten is a twin-edged one. The Right to be Forgotten Case in the Court of Justice of the European Union went on to find mention in over 40,000 instances across the Internet, even spark myriad comments on the case that had started off to do just the opposite. 

In a paradoxical situation, the petitioner despite having won the case was denied the right to suppress links to comments about that case by the Spanish Data Protection Authority (DPA) that considered the ruling, comments and facts behind it, of ‘public interest’. Ashutosh Kaushik may well be known in history for his petition to erase mention of the facts that could persist till perpetuity owing to a similar interpretation of law.

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Gajanan Khergamker

Gajanan Khergamker is an independent editor, legal counsel and documentary film-maker with over three decades of media-legal experience across India. He is the founder of DraftCraft – an India-based think-tank. Through strategic writings and columns across global media; niche workshops held for the benefit of police personnel, lawyers and media students as well as key lectures held at corporate venues and in Law and Mass Media colleges and universities across India, he analyses and initiates 'live' processes that help deliver social justice through the media and legal channels. He trains students, journalists, lawyers and corporate personnel to ideate, integrate and initiate the process of social justice which “isn't the sole responsibility of the State”. He holds legal aid workshops and creates permanent legal aid cells for the deprived across India through positive activism and intervention. He furthers the reach of social responsibility by initiating strategic process by offering consultancy services to corporates in the rapidly-growing CSR scenario. To further the reach of social responsibility, Gajanan Khergamker works closely with state entities, law universities, educational institutes, research think-tanks, publications and media houses, corporates and public-spirited individuals. His areas of interest include public affairs, inclusion, conflict of interest, law and policy, foreign affairs and diversity.

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