X v. https//www.youtube.com/watch?v=iq6k5z3zys0 & Ors.
In the High Court of Delhi
CS(OS) 392/2021, IA 10543-10546/2021
Before Justice Asha Menon
Decided on August 23, 2021

Relevancy of the case: Granting interim relief to prevent further transmission of the plaintiff’s explicit videos by recognising the right to be forgotten as a part of the right to privacy

Statutes and Provisions Involved

•  The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Rule 3(2)(b))
• The Information Technology Act, 2000 (Section 67, 67A)
• The Code of Civil Procedure, 1908 (Section 151)

Relevant Facts of the Case

• Through IA 10544/2021, the plaintiff requested the court to not disclose her identity in proceedings. The court had accepted this request and passed the necessary directions.
• The plaintiff is a well-known Bengali actress. A famous studio had approached her to film a web series. The studio promised her the lead role and asked to record a demo video trailer. This video comprised of explicit scenes with complete frontal nudity. The project did not take off, and the web series could not see the light of the day.
• In December 2020, the plaintiff learned that the producer had uploaded these videos on his YouTube channel. She thereafter requested him to take them down. The procedure duly accepted her request.
• However, defendants 1 to 36 uploaded these videos on their sites. Some even added objectionable and obscene commentaries to the video.
• After this incident, the petitioner started receiving calls from anonymous callers. These videos have resulted in the loss of reputation and her professional endeavours.
• Defendants 1 to 36 are the websites where these videos are available. Defendants 37 to 68 are internet service providers, while defendants 69 and 70 are search engines.

Prominent Arguments by the Advocates

The plaintiff’s counsel:

• The counsel submitted that she has the right to privacy, per the Puttaswamy judgement. She also has the right to be forgotten, and the court can grant interim protection to her. The counsel relied on the cases of Jorawer Singh Mundy v. Union of India (2021), Zulfiqar Ahman Khan v. Quintillion Business Media Private Limited (2019), and Subranshu Rout v. State of Odisha (2020).
• The plaintiff’s counsel drew the court’s attention toward Rule 3(2)(b) of the IT Rules, 2021. Under this rule, online platforms must take reasonable efforts to remove or disable access to sexually explicit content within 24 hours of receipt of a user’s complaint.

The counsel for defendants 69 and 70:

• The counsel opposed the grant of any interim relief. She submitted that the defendants were unaware of any agreement permitting the broadcast of these videos. Since the plaintiff had consented to the recording of the videos, the court must see if the defendants are under any obligation to prevent their further publication.
• She relied on the Madras HC judgement in Karthick Theodre v. Registrar General to further her argument that the suit is not maintainable. There is no such right to be forgotten as there is no statutory law.
• The courts have rejected this form of disablement of search results in cases such as Dharamraj Bhanushankar Dave v. State of Gujarat and Anchit Chawla v. Google India.
• She further submitted that the Zulfiqar Ahmad Khan judgement is not applicable here. This case related to defamation due to a fake #MeToo claim. Ultimately, the parties settled.
• In the Subhranshu Rout case, she relied on the court’s observation that the right to be forgotten is not recognised in India. The concerned court had further directed the petitioner to approach the platforms for the takedown of objectionable rape videos.
• She further contended that the court should read Rule 3(2)(b) along with Sections 67 and 67A of the Information Technology Act, 2000. The plaintiff gave her consent for the recording of the videos in question. Hence, these videos do not fall in the scope of Rule 3(2)(b). Further, this rule requires the victim to submit a complaint, which did not happen in the present case.

Opinion of the Bench

• The videos in question contain explicit material covered in Rule 3(2)(b) of the IT Rules, 2021. The court can deliberate on the suit’s maintainability at a later stage.
• The plaintiff might have participated in these videos voluntarily; however, she did not license them to any website or online platform.
• The court noted the Madras High Court’s observation that there is no statutory right to be forgotten. However, another bench of the Delhi High Court, in the Zulfiqar Ahmad Khan case, had recognised that the right to privacy includes the right to be forgotten and the right to be left alone as inherent aspects.
• The plaintiff, therefore, deserves the protection of her privacy from strangers and anonymous callers.

Final Decision

The bench ruled in the plaintiff’s favour and directed:

• Defendants 1 to 36 to remove the videos in question or any part thereof,
• Defendants 37 to 68 to disclose the server details of services used by defendants number 1 to 36 and any other website involved in the same and
• Defendants 69 and 70 to remove these videos from their search result pages.