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'

Emphasizing the need for statutory recognition of 'right to be forgotten', the Orissa High Court observed that allowing objectionable photos and videos of rape victims to remain on a social media platform is a violation of their right to privacy. 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, Justice SK Panigrahi observed while dismissing a bail application filed by a rape accused who had also uploaded the video on Facebook. The court said that if the right to be forgotten is not recognized in such matters, any accused will surreptitiously outrage the modesty of the woman and misuse the same in the cyber space unhindered.There is an unprecedented escalation of such insensitive behavior on the social media platforms, the judge noted. The court, while considering bail application noted that the accused had uploaded the video in a Facebook profile he created in the name of victim and the same was deleted by him after the police intervention of Police. The court said: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 remIn 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 helpWhile 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....

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'

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