Introduction
“It is generally much more shameful to lose reputation than to have never acquired it.” said Pliny the Elder, the Roman savant and author of the celebrated work ‘Natural History’. This concept is deeply ingrained in the human psyche as the reputation of a person is the extension and elaboration of that recognition deemed to be the focal point of human existence. When reputation and dignity get called into question for past cases in the public domain, it raises questions as to how the same should be handled. Often even after the conclusion of legal trials that get lost in the scandal and spectacle, the persons involved are put through the parade of public mockery and denunciation. This collective judgment of that individual leads to concrete consequences such as loss of livelihood, public defamation, and social isolation. It is in this context that the relevance of the right to be forgotten in society at large arises as a matter of safeguarding privacy every person is entitled to.
How Cancel-Culture presupposes Legal Outcomes
Why does a person need such privacy? How does it matter to an individual daily whether or not their name is being circulated online for malicious purposes? The Johnny Depp-Amber Heard scandal provides a real-life example of the same wherein during the trial investigation of Mr. Depp for domestic abuse, every action of Ms. Heard was relentlessly scrutinized and picked apart on social media that branded her a liar, manipulator, harlot etc. In her own words, she was harassed, humiliated, and threatened every single day. Hence, even before the trial concluded, in the eyes of the world at large wields the vicious gavel of cancel culture or shared attitudes within society leading to public rejection. The case was an example of how malicious and widespread online coverage of individuals put through trial can get for both the victim and accused neither of whom is right or wrong until the final verdict is out and yet is made to pay for the consequences even before the rule of law proposes the same.
Legal Position on the Right to be Forgotten
In law and legal systems across the world, the right to be forgotten is associated with the dignity and reputation of an individual. The right essentially protects a person’s name and reputation from negative commentary by the erasure of personal data they don’t want to show up via search engines.
The European Court of Justice prominently recognized this right for the first time in the Mario Costeja Gonzalez v. Google Spain SL & Google Inc. in which the court held categorically that while processing of personal data is a legitimate interest of companies like Google the same cannot be allowed to override the privacy of an individual and their right to be forgotten. This case would have significant ramifications on the scope of the right to be forgotten across the world.
In the Indian context, the Delhi High Court assessed the scope of this right in the Jorawar Singh Mundy vs Union of India and Ors, wherein the request of the Petitioner, an American national, who wished to have the judgement titled: Custom v. Jorawar Singh Mundy, Crl A No. 14 of 2013, removed from the platforms such as Google, Indian Kanoon and Lex, was considered. The judgement in question concerns a case under the Indian legislation of Narcotics Drugs and Psychotropic Substances(NDPS) Act,1985 that was registered against him when he came to India in 2009 but he was successfully cleared of all charges by 2011. Unfortunately, the attachment of his name concerning a case surrounding narcotics ended up being a huge detriment to the petitioner while seeking employment in the USA. The said judgement was one of the first things to appear whenever any employer conducted a background check. The petitioner prayed before the High Court that a past case in which he was acquitted should not end up affecting his life in the present based upon this right to claim privacy of life under Article 21 of the Indian Constitution that guarantees personal liberty and life to all persons irrespective of their citizenship.
The court in this case observed the foundational right of privacy assured to all persons in the Justice K.S Puttuswamy(Retd) vs Union of India case and further interpreted it along the lines of another case of the Delhi High Court, Zulfiqar Ahman Khan v. Quintillion Businessman Media Pvt. Ltd & Ors, wherein it is elucidated that the right to privacy entails the right to be left alone. The court observed that in the present case information about the petitioner in an old case wherein he was found not guilty was still hampering his professional and personal life and hence was entitled to legal protection until further orders by the restriction of access to the judgement that contained his name.
This case though an interim order was subsequently sustained and essentially highlights the importance of reputation that can often be seriously jeopardized by ill-will and public perception to due past association(whether proven or not) with anything considered morally reprehensible by society such as narcotics in the case.
Reputation vs Free Speech- The Conflict and the Obligation of the State
These cases discuss the essence of the argument of Reputation being an integral part of life and personal liberty under the scope of Article 21 versus the right of media sites and online platforms to publish material under the freedom of speech and expression under Article 19.
To understand the importance of reputation and its role in society, the American case of D.F Marion vs Davis provided a clear observation that forms the basis of this conflict. In this case, it was clearly stated that a good reputation is an essential element of personal security and its protection is a law of ancient origin. This American decision and its overarching legal principle were cited and agreed upon by the Supreme Court of India in the cases of Smt. Kiran Bedi v. Committee of Inquiry and State of Maharashtra v. Public Concern of Governance Trust.
Hence while understanding the concept of clashing rights of Articles 19 and 21 one needs to understand and comprehend that the reasonable restriction of free speech under Article 19(2) includes the restriction of free speech in inciting defamation of an individual. This has been placed under the scope of the constitution as a necessary evil in order to preserve and propagate the private rights of individuals and value their reputation against the scales of societal judgment. Even though the right to privacy is a fruit of the recent Justice K.S Puttuswamy(Retd) vs Union of India case wherein the inherent conflict between reputation and free speech was recognized, the court also clearly held that reputation directly derives itself from the assertion of the right to life under Article 21. Simply put, while it’s perfectly reasonable that free speech be allowed its fair share of leverage in reporting and putting out information, the same cannot come at the cost of publicizing unsubstantiated allegations or allegations of which individuals have been cleared of and continue to subject individuals to the social guillotine. Hence the state which includes the judiciary is obligated to address this conflict in the clearest of terms so as to protect the private reputations of all individuals that come before it. The principle of ‘innocent until proven guilty’ needs to specifically apply in the context of not just criminal justice but also social justice.
The Supreme Court as the top court of this country needs to tackle important questions such as whether it is right for an individual to be treated as a social pariah for allegations that are yet to be substantiated or have been cleared off long back. Especially in cases wherein acquittal has occurred on the part of the judiciary is it right to allow the matter to persist online leading to an individual’s reputation being taken to the mud on a daily basis? Is freedom of speech so non-negotiable that those who have been acquitted by the court continue to face discrimination from society due to permanent records on the internet? Justice that the court attempts to propagate in terms of setting free the innocent cannot only be through declarations of law but needs to also have practical value and the same cannot happen until records surrounding cases deemed shameful by society such as narcotics, sexual harassment needs to be off the internet or other platforms regularly accessed by millions.
Every citizen deserves their share of social justice that allows their privacy to be preserved in light of social upliftment and progress. John Rawls perceived justice as a means of conflict resolution for the ideas of equality and freedom that are conceived by both the liberal and conservative aspects of society. Justice that the court attempts to perpetrate needs to be a manner of harmonization of the various forms of freedoms in society, for only that can lead to the creation of a stabilized political order. Hence, aside from the various High Courts upholding the ‘right to be forgotten’, it is imperative that the Supreme Court of India looks into the matter to come up with a profound reasoning that protects the private reputation of individuals from being taken to the mud at the cost of preserving free speech.
Lessons from Melvin vs Reid
To clearly understand the ramifications that past associations with controversial aspects of one life can have on individuals, the case of Melvin vs Reid decided by the Los Angeles Court needs to be introspected that marks one of the earliest instances of a court of law attempting to explain the context behind right to be forgotten as against the rights accorded to persons who circulate content. In this case, a former prostitute who had been cleared of murder charges filed a lawsuit for invasion of privacy when a movie tried to use her maiden name to depict her past. In the said case the court observed that the publication of unsavory past incidents of the person’s life was not justified by any standards of morals and ethics for it impedes to right of such person to pursue and obtain happiness.
In this case despite not explicitly using the term, ‘right to be forgotten’ the court ended up laying down one of the first recorded jurisprudence on why this right needs to exist and why justice cannot be meted out to individual happiness if publications right in the name of free speech are given an absolute leeway. In cases of public records that hold negative information with respect to an individual often leads to public denunciation affecting the prospects of the individual when it comes to public trust and daily living. Such a form of public prejudice which is a fear-mongering spectre of social terrorism can ruin the careers of individuals along with a significant detriment to their image in public.
Jesus, the founder of the world’s largest religious community, was controversial, misunderstood, and unapologetically honest and hence one of the first victims of this social ostracization to the point of death. Hence Jorawar Singh Mundy read along with the first jurisprudence on this concept stated nearly 100 years ago in Melvin vs Reid highlights the principle of the right to be forgotten along almost the same lines of protecting a person’s privacy and allowing for them to pursue a fruitful existence in the future without their past arising suspicions about them.
Melvin vs Reid as a case foresaw the inherent dangers of a system that allows for the free and unbridled publication of all kinds of information that forms the basis of a person’s private reputation. Today the observations in Melvin vs Reid are relevant more than ever especially in India wherein the number of internet users is predicted to reach 900 million by 2025. The Supreme Court of India needs to take cognizance of the jurisprudence laid down in this case, give due weightage to individual growth in the growing space of media and public perception, and actively remedy this issue of private reputation against free speech.
Way Ahead
The writings on the wall, and individual privacy are facing the imminent threat from internet trolls and the permanency of information online. In cases where such information is of past events of unsavory character, the effects of the same on individuals are radical. The loss of reputation and income caused by social ostracization is often hard to recover from. Information about a person posted to a social network threatens their ability to control their personal brand. For these individuals in question, the mere association with a case involving something the society considers problematic or immoral leads to the enlisting of such individuals on a permanent basis into the black books of society. With no clear way out of the mess, an individual who is shamed in such a manner will fall prey to a toxic aversion of the people responsible for such ostracism than come out of the anxiety and hence fall into a relapse of social abuse and melancholy.
This brings us back to the earlier argument of why then the Supreme Court needs to tackle the essential question of reputation against free speech. The Supreme Court can consider the ‘direct effect doctrine’ set forth by RC Cooper vs Union of India’ which emphasizes that all forms of state action need to be evaluated on the basis of its effect on individual freedoms across all forms of dimensions. Hence the Supreme Court needs to set a binding precedent that on a multi-dimensional level ensures that Article 21 which preserves personal liberty and reputation is given as much importance as free speech under Article 19. A balanced reading could allow for the Supreme Court to set guidelines for removal from records cases where individuals are yet to be convicted or have been acquitted to preserve their dignity and ability to move on in life. Even in the case of lesser offenses wherein the individual is attempting to move on or reform such protection of identity can be accorded. Supreme Court needs to carefully evaluate all considerations and set the record straight on the matter to ensure legitimate consistency in tackling this issue across the country.
(This post has been authored by Aadithya J. Nair, a third-year law student from National University of Advanced Legal Studies, Kochi.)
CITE AS: Aadithya J. Nair, “Pride and Prejudice – Reputation in light of Right to be Forgotten in India” (The Contemporary Law Forum, 04 April 2024) <https://tclf.in/2024/04/04/pride-and-prejudice-reputation-in-light-of-right-to-be-forgotten-in-india/> date of access.