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The Delhi High Court in a suit filed by a Bengali actress upheld and reiterated that “right to be forgotten” and “right to be left alone” are an essential and inherent part of the fundamental right to privacy. 

The order was passed by a single judge bench of Justice Asha Menon.

While the Court was conscious that there is no statutory right to be forgotten (presently it is only a draft provision under the Personal Data Protection Bill 2019), in view of the facts of the case where the plaintiff’s explicit video clips are being circulated after her withdrawing her consent, the Court observed that there is a clear and immediate effect on the reputation of the plaintiff, requiring the grant of an interim relief to the plaintiff. 

The court categorically held that the right to privacy of the plaintiff has to be protected, ‘especially when it is her person that is being exhibited, and against her will’.

While the plaintiff may have consented to the shooting of the impugned scene, the consent was expressly withdrawn as the producer of the series had also removed the videos upon the plaintiff’s request.

The court also relied upon Rule 3(2)(b) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which obligates intermediaries, including search engines, to remove or disable access to content which is hosted, stored, published or transmitted upon receipt of the complaint made by any individual/person in relation to any content which shows the individual in partial or full nudity or in some sexual act or conduct.

Google, the only contesting defendant in the case, argued that there is no statutory protection granted to the plaintiff and that the plaintiff, having consented to the shooting of the video, could not rely upon the right to be forgotten or Rule 3(2) of the Rules 2021 for take down of the video. 

“It is disconcerting how Google as an intermediary has misinterpreted Rule 3(2) which mandates an intermediary to act upon a complaint made by either a ‘victim’ or ‘user’, in such a case, where evidence of consent having been withdrawn was placed on record”, the Court said.

Noting that this is an issue of seminal importance, Justice Menon has directed the intermediaries, including Google, to comply with the order and take down the objectionable videos within 36 hours. 

Further, the court has also allowed the plaintiff to approach any other party not arrayed to the suit, on the basis of the order, requesting such party to remove the objectionable video.

The court has also allowed the plaintiff’s application seeking protection of the identity and retaining confidentiality of the proceedings.

Facts

According to the plaintiff, a well-known actor, had been approached by Ram Gopal Verma Studios for filming a web-series.

The actor alleged that on the promise made to her of giving her the lead role in the web-series, she was lured into participating in a demonstration video/trailer, comprising of explicit scenes of complete frontal nudity. However, the project fell through and the web-series was never produced.

In December, 2020, the plaintiff came across the videos, enclosed with the suit (referred to as the “suit videos”), which had been uploaded by the producer on his YouTube channel and website. The plaintiff requested the producer to remove the same and the producer removed the said suit videos from his YouTube channel and website. 

However, without the plaintiff’s consent various websites have uploaded the suit videos. Some of them also superimposed objectionable and obscene commentaries on the suit videos. As a consequence of such action, the plaintiff was constantly subjected to anonymous callers and also subjected to insults. Thus, the suit videos have resulted in loss of reputation as also great prejudice to the plaintiff’s professional endeavours.

The plaintiff filed a suit before the High Court for an interim protection against the publication/streaming/ broadcasting, etc., of the suit videos on the various URLs/ websites/mobile applications and other online platforms, portraying the plaintiff in a manner that infringes her privacy.

Case Title: X v YouTube.com & Ors