Today, in the era of internet in pocket and the world
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 in the eyes of society.
Recently, actor Ashutosh Kaushik, winner of most
controversial shows Bigg Boss and MTV roadies have approached High Court at
Delhi (Ashutosh Kaushik vs. Union of India & Ors., W.P.(C) 6790/2021)
seeking directions to remove all the posts, videos, articles, etc. from the
internet related to his various past sensitive incidents including an
altercation at Mumbai café in 2013 and drunken driving case reported in the year
2009.
Ashutosh has made the plea under his ‘Right to
be forgotten’, which has been recognized as a right inherent to the
right to privacy enshrined under Article 21 of the Constitution of
India. Ashutosh in his plea have put forth 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. 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”. A notice is issued notice to the ministry of information and broadcasting, Google
LLC, Press Council of India, and Electronic Media Monitoring Centre to respond
to Ashutosh’s plea.
Can a search engine be responsible for public
memory?
The ‘Right to be forgotten’ is the right
to require a search engine to ‘de-reference’ links returned by a search
for an individual’s name using a search engine. Hence, ‘Right to be
forgotten’ is not just the matter of individual’s right to privacy but
also many related Intellectual property around it as public records cannot be ‘taken down’
just like that because then it amounts to total censorship and whether ‘public
embarrassment’ should be ground to allow censorship of content on the
internet? It is noteworthy that ‘truth’ has always survived as a defence in
cases where defamation has been alleged and if newspapers are allowed this
particular defence then why should the internet be regulated differently and
why should Google or any search engine for that matter be responsible for
public memory.
‘Wayback Machine’ – A way to public
embarrassment
Let us assume, even if Delhi High Court order
in favour of Ashutosh Kaushik and all the posts, videos, articles, etc. are
removed from a Google search however the images and videos tend to crawl over
to multiple websites, especially if they entail websites which are opaque in
terms of regulations and IP addresses. A lot of unauthorized pictures of celebrities keep getting leaked by
the media. The unauthorized distribution of pictures or videos of celebrities is
rampant on the Internet. A challenging situation arises when the work has
entered the ‘public domain’ and the individual wants to exercise the
right to be forgotten. The ‘Right to be forgotten’ has far-reaching
implications on copyright law.
In order to exercise the ‘Right to be forgotten’,
the onus to prove that the post, video, or image are listed on the Internet/search
engine without the consent of the individual i.e., in this case, Ashutosh have
to prove that all the videos, images and post available over internet of his
past incidents are listed without his consent violating his celebrity right per
se. It is also pertinent to note here that even if all the videos, images, etc.
are successful ‘taken down’ still the Internet Archive’s ‘Wayback Machine’
retains copies of the news, films, and videos.
The ‘Wayback Machine’ is a collection of
websites accessible through the websites ‘archive.org’ and ‘web.archive.org’.
These Internet crawlers store copies and preserve them as they existed. So even
if Ashutosh exercises his ‘Right to be forgotten’, his videos,
images related to altercation at a café in Mumbai, or drunken driving can are still
accessible through Internet archives which will be a clear violation of the
copyright by the Internet crawlers.
The saga of Public Domain and Right to be forgotten
The
posts, videos, and images Ashutosh seeks to remove have entered the public
domain being a news update. Hence even if Ashutosh is successful in taking the ‘takedown’
order he will not have a remedy against its probable infringers as the ‘Right
to be forgotten’ is restricted to online publications and copyright law
does not give protection on the works which have entered the ‘Public Domain’.
It is noteworthy here again and as stated above, Ashutosh in his plea have
accepted that the posts, videos, and images he is seeking to be removed are on
‘Public Domain’. According to his plea, “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.”
The
right to be forgotten has a far-reaching impact on access to knowledge and
innovation. Internet is the catalyst to exercise of the right to be forgotten.
The interface between the right to be forgotten and copyright law uncover
issues that were not foreseen at the time this right was recognized. However,
while we await the High court’s order in this matter, but this is demonstrated
now that 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 the law.
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