Does society-has-the-right-to-know argument hold when a man who wishes to turn over a new leaf is defeated by dirt from his past that litters the Internet? The right to privacy judgment could work in favour of those who wish to be forgotten, say India’s legal experts
Unable to find a job or a bride through arranged marriage, reality TV star Ashutosh Kaushik, who now runs a dhaba business in Saharanpur, has moved court to erase all traces online of a 2009 drunk driving case. Pic/Nishad Alam
At 41, actor and reality television star Ashutosh Kaushik says things are finally looking up for him. He tied the knot during the early days of the lockdown last year, and is gradually making a comeback as an actor with “short films” that he shares on his YouTube page. Kaushik sends us one such video titled, First Date in Arranged Marriage, over WhatsApp, where he plays a prospective groom. This one has a happy ending. But, in real life, that’s never been the case for him.
“I lost out on a lot of arranged marriage proposals because of what’s out there about me. The girl’s side would see it and say, ‘Isne toh bahut jalwe bikher ke rakhe hain’. I had to find a bride on my own. It was emotionally frustrating. Everyone would keep turning me down, because of a law I had broken a long time back.”
Actor and reality TV star Ashutosh Kaushik recently approached the Delhi High Court seeking his “right to be forgotten,” and the removal of certain posts, videos and articles about him on the internet. The actor who was charged and arrested for drunk driving in 2009, says his past continues to haunt him, and he hasn’t been able to get good a job since. Pic/Nishad Alam
Over a decade ago, Kaushik, who now lives in Saharanpur, Uttar Pradesh, was the toast of the town. He was declared the winner of MTV Hero Honda Roadies 5.0 (2007), and the second season of Bigg Boss in 2008. Riding high on these successes, Kaushik, who at the time had just moved to Mumbai, claims he lost his way. “I lost track of life. Maybe, if I hadn’t tasted success that soon, I would have been in better control of my future,” he says over a telephone interview.
In 2009, a year after his Bigg Boss stint, Kaushik was charged and held for driving under the influence of alcohol. A few years later in 2013, he raked up another controversy, when he was allegedly involved in a brawl. “I stopped getting roles. I realised that my past was catching up with me.”
In the hope of starting on a clean slate, he returned to Saharanpur, where he now runs a dhaba business. He says he hasn’t touched alcohol in five years. But, turning a new leaf in the era of the World Wide Web—where our lives are being archived in the digital wormhole for posterity—is easier said than done. “You have to just type my name on the web, and all the links and videos to my drunken driving case will surface; that too, right at the top of the search. When I started creating online content, I had hoped that these links would somehow get buried, but that never happened. I even wrote to some of the news sites, and TV channels, saying, ‘Now that you have made enough money by ruining my reputation, can you please take down these articles.’ Some relented, but many ignored the request.” That’s when Kaushik, who is currently studying to be a lawyer, decided to take legal recourse.
Retired Justice KS Puttaswamy speaks during a press conference after the verdict of the Supreme Court on Aadhaar Card at his residence, on September 26, 2018 in Bengaluru. He is one of the first to question the legality of Aadhaar. Pic/Getty Images
Last month, the actor approached the Delhi High Court seeking his “right to be forgotten”. In legal parlance this means that Kaushik wants all publicly available information related to his drunk driving case removed from internet searches, databases, and websites, as he feels it’s no longer relevant. Notices have been issued to the Union Ministry of Information and Broadcasting, Google LLC, the Press Council of India and the Electronic Media Monitoring Centre to respond to the petitioner’s invocation of his right to be left alone. The next hearing is in December. “I made a mistake, I got punished and I suffered the consequences. I think it’s enough,” he says.
While the European Union, under the General Data Protection Regulation (GDPR), gives citizens the power to demand data about them to be deleted, there is no such recourse available in India, at least at this point. The Personal Data Protection Bill 2019—introduced in the Lok Sabha by the Minister of Electronics and Information Technology Ravi Shankar Prasad—that recognises this right to correction and erasure, is still being analysed by a Joint Parliamentary Committee.
But, the landmark right to privacy judgment delivered by the Supreme Court in Justice Puttaswamy versus Union of India case has now become the touchstone for many, who are invoking their “right to be forgotten”. Puttaswamy was among the first petitioners to challenge Aadhaar in the Supreme Court, and had contended that making the ID system mandatory for citizens to avail government services was an infringement on their fundamental rights. In the concurring opinion delivered by Justice Sanjay Kishan Kaul, he had stated that “the right of an individual to exercise control over his personal data and to be able to control his/her own life would also encompass his right to control his existence on the Internet.” A year later, in September 2018, a Constitution Bench of the court had upheld the validity of Aadhaar, but with riders. It struck down Section 57 that allowed private entities to seek Aadhaar data, but allowed the unique number to be used for government schemes and subsidies.
Vandita Morarka and Akshat Bajpai
Subsequent judgments in the courts of law have recognised the right to privacy as a fundamental right, enshrined in Article 21 of the Constitution, which states that “no person shall be deprived of his/her life or personal liberty except according to procedure established by law”.
“I think it’s an important right to have, not just while we are alive, but once we are deceased,” feels anti-oppression and social justice facilitator, and rights based strategy consultant Vandita Morarka. “We should have the right to control our narrative, and who knows how much about us, especially in a world that is increasingly becoming intrusive.”
In the thick of the #MeToo movement in 2018, a managing director of a media house had filed a suit against a leading news and opinion website, after it had written articles against the plaintiff on the basis of harassment complaints claimed to have been received by them from three women, who had remained anonymous. At the time, the Delhi High Court too, had recognised the “right to be forgotten” and “right to be left alone” as an integral part of the individual’s existence.
Former Google Chairman Eric Schmidt (fourth from right) and his senior vice president of corporate development David Durmmond seen leading an advisory council about The Right to be Forgotten at Casa de America on September 9, 2014 in Madrid. Google was then holding a series of meetings across Europe to discuss the European Court of Justice’s “right to be forgotten” ruling, which allowed individuals to request Google remove information about them. Pic/Getty Images
Abhishek Singh, Advocate, Delhi High Court, who represented the plaintiff, says “the woman who had levied allegations of sexual harassment against my client during the #MeToo movement had remained anonymous”. “The news site without due verification had gone ahead and published articles, where my client was labelled a ‘sexual predator’. At no point, did the women ever disclose their identity. It defied the very essence and object of #MeToo movement, which was all about giving the women a platform to come out in the open and speak against atrocities or harassment faced by them. My client could not defend himself, without really knowing who had made those allegations against him,” says Singh, adding that the court saw merit in the contentions raised by him and on the very first day restrained any further publication.
He claims that this particular case was different from that of Kaushik’s, because his client had not been held guilty or undergone a trial for the offence. “There was an allegation against him which could not be substantiated. Does it then even deserve to remain on the internet, and haunt him for the rest of his life?” Singh asks.
“The High Court also recognised that if the article continued to be on the internet, it would be detrimental to the plaintiff.” All the stories related to the case were subsequently deleted.
Only recently, another US citizen of Indian origin had petitioned to the Delhi HC directing a legal news site to block the judgment of his acquittal under the Narcotic Drugs and Psychotropic Substances (NDPS) Act in 2013, from being accessed through search engines such as Google and Yahoo, as he was finding it difficult to find a job because this case reference kept coming up in online searches by prospective employees. Even here, the court ordered the respondents to remove the judgment.
Abhishek Singh, lawyer
Singh feels that a person duly acquitted by the court certainly has “a right to be forgotten” as freedom of Press and Publication cannot impinge upon the right to liberty and privacy, which stands on a higher pedestal. “However, a convict held guilty for an offence or one undergoing a trial should not be allowed to avail the right as most crimes are offences against society, and society has to guard against the anti-social. Therefore, it is necessary for the safety of the society that it retains collective consciousness about the criminal elements among us. Here the welfare and interest of societies is paramount in comparison to a convict or under trial’s right to privacy,” he says. He adds, “To my mind in Kaushik’s case, the court has to weigh the society’s rights vis-à-vis private rights to be left alone and forgotten as claimed by him.”
Kaushik’s lawyer, Advocate Akshat Bajpai, admits that his case is tricky, because it is also the first time that a celebrity is seeking to invoke the “right to be forgotten” in India. “When you are a known personality, your right to privacy comes to acquire a different definition altogether. You yourself are thriving on the publicity, so, is there really a middle path that can be achieved, when you demand certain information to be removed? Even while drafting the petition, I spoke with several colleagues, because there’s no clear cut answer to this one.”
Between May 2014—when a European court had ordered Google LLC to allow Europeans the “right to be forgotten”—and 2018, the technology company had received more than 6,50,000 requests to remove certain websites from its search results. Most of those requests were to remove five or fewer URLs from its search results, NPR.org had reported. In all, Google had shared that it received requests to remove more than 2.43 million URLs, and it had removed about 43 per cent of them. The numbers reflect the urgency for privacy among web users. However, as established by the court even then, the use of this right by public figures, such as celebrities or politicians, would be limited.
At present, Google’s support page offers resources for EU citizens who want to submit a request to “delist content under the data protection laws”. “Data protection rules only apply to the processing of personal data relating to individuals. Corporations and other legal entities usually don’t have rights to delist content for queries based on their corporate name,” the Google support page states.
The Internet in India is a recent phenomenon. It’s just over a decade old and the repercussions of its use will only be felt in the times to come,” feels Bajpai. “The fact that a Bill is also pending consideration means that at some point, we will be able to address issues of privacy, and find a more comprehensive solution to the problem,” he adds.
But, a Mumbai-based digital marketing professional, who did not wish to be identified for the story, says that privacy on the Internet is going to be very hard to achieve. “Having worked in the industry for eight years, I know how much of what we consume digitally is controlled by algorithms. We are all giving away more than we think. For instance, my number has been registered on Truecaller, when I never really registered on the app. Now, any random person who has my number, will have access to my full name and possibly, even my residential address.”
An avid social media user herself, she has, over the last few years, restricted how much she shares on the web. “I have always been hyper about privacy. So, I don’t use Google for browsing everything, and if I do, I browse in incognito mode as I do not want paid content suggestions to influence my choices. I have switched off all the trackers, and I clear my cache and data-base regularly. I even log out from all my apps once in a while,” she says, adding that she avoids sharing her own photographs on social media, and has requested friends against tagging her. “It is quite time-consuming to do this every single day, but this diligence is the only way I can try to protect myself.”
Morarka, who as founder and CEO at One Future Collective, a feminist youth led not-for-profit based in India, works with a lot of young people, has seen how extra-conscious some of them are about how they project themselves online. “So many of them are spending all their time, building this image for themselves [in the virtual world]. It’s coming from the place where they know they will be remembered and hence, want to leave behind a certain kind of memory. I am mindful of what this [infringement of privacy] might do to the mental health of such a generation. I don’t think we have been able to fully comprehend the impact of the Internet in our lives yet, and how it is shaping our personalities,” she says. Morarka feels that having the right to be forgotten, might possibly allow people to live more fuller and honest lives, especially online. “I do see young people wanting to exercise such a right in the near future.”
Number of requests received between 2014 and 2018 by Google to remove certain websites from its search results, according to NPR.org
‘This right is for people who want to move on’
UK-based Phil Martin is the founder of interneterasure.co.uk, a one-of-its-kind service that assists people in the region with “blocking, removing, and deindexing” links related to them from search engines. “It all began when I set up a recruiting agency, which specialises in helping people with criminal records get into employment. My job was to [basically] remove barriers that came in the way of employment, which allows people to have stable lives. I soon realised that one of the major barriers was Google. Why should someone be punished every single day, for something they did several years ago? If the person has learnt from their mistakes, it shouldn’t still be available for everyone to read. It’s like being a very, nosy neighbour,” he adds in a telephonic interview. As Martin started getting some success in removing content of his job applicants, he felt that this needed to be a service on its own. The website was launched recently, and he says, it’s not just for people with criminal records. He has received over thousands of requests in the last one year. “But, we can’t accept everybody as a client, because I know what Google expects. We must, however, remember that the ‘right to be forgotten’ is not just for people with criminal records, but a much wider group of people, who have had something happen to them in the past, and now want to move on in their life.”