The Delhi High Court has ordered Facebook, Google, and Instagram to remove all posts, search results, and content containing ‘defamatory’ content — content containing sexual harassment allegations — against Indian artist Subodh Gupta, in an order dated September 18. The court has ordered that (see order below):
- Two posts, from December 2018 and January 2019, containing allegations of sexual harassment against Gupta, be blocked or removed.
- 9 news articles about either the allegations against Gupta or his subsequent resignation from Serendipity Arts Festival, be blocked or removed.
- 7 Google Search result links pertaining to the allegations, such as ‘subodh gupta metoo’, ‘subodh gupta sexual harasser’, ‘subodh gupta sexual facebook’, and so on be blocked or removed. The 9 news articles mentioned above should also be blocked by Facebook and Google. This is the equivalent of a Right to be Forgotten order on the technology companies.
Over the last two hearings, held in September, the court has also asked Instagram to furnish the name of the account operator in a sealed envelope by the next hearing, scheduled for November 18. Gupta was accused of sexual harassment on an anonymous Instagram account in December 2018. The account posted a series of allegations against Gupta that contained ordeals of multiple unnamed women. The court has also restrained the Instagram account from posting any content relating to Gupta until the next hearing.
The order, passed by Justice Rajiv Sahai Endlaw, said that the allegations cannot be permitted to be made in public domain without being backed by legal recourse”. If this is permitted, it would be “capable of mischief”, it added.
Facebook appeared in the case on September 30, and undertook to take down the Instagram posts and to provide further details of the account operator by the next hearing, per LiveLaw.
Gupta had filed a civil defamation suit stating that the allegations were false, and sought token damages of Rs 5 crore from the operator of the anonymous Instagram account, reports LiveLaw. The court order revealed that Gupta’s alleged victims haven’t been named in the posts, or been identified elsewhere, and they haven’t initiated any legal proceedings against Gupta.
Right to be Forgotten in India
The Right to be Forgotten is recognised in multiple jurisdictions, it allows people to demand erasure of their personal information from the internet. This right has its origin in right to reputation and right to privacy. Its also based on the idea that because the internet remembers forever, it doesn’t leave space for redemption or self-correction. In India, the right to be forgotten has not been formally recognised, but it’s a part of the Draft Personal Data Protection Bill, 2018. The bill provides for the right to restrict or prevent information disclosure, but not the right to erasure. Under the bill, an adjudicating officer will decide whether RTBF should be granted on the basis of sensitivity of the personal data involved, role of data owner in public life, the scale of information sought to be restricted, etc.
Cases in high courts
In a case in the Delhi HC, the petitioner had sought that Indian Kanoon and Google remove his name from their search results, as it was affecting his employment opportunities. He said the criminal case between his wife and mother kept showing up when people searched for his name online.
In another case in the Kerala HC, the petitioner had sought that Google should remove the hateful content posted by his wife, as it was causing humiliation to him and his children. The petitioner even cited the Google Span decision, where the European Court of Justice had ruled that Google needs to create a system for deletion of personal information.
Delhi HC order dated September 18, 2019:
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