The identity trap
Lhendup G Bhutia | 22 Mar, 2017
LIKE SEVERAL INDIAN mothers-in-law and daughters-in-law before them, Kalpana Singh and her daughter-in-law Priyanka (names changed upon request) fell out with each other. More than a struggle for one person’s affection, you may think that at the core of this quarrel lay the straining absence of love. (Kalpana’s son and Priyanka’s husband lives and works away in the Middle East). Or maybe the reasons were entirely sublunary. A peculiar interest perhaps in the other’s property (a lawyer representing a family member believes this was one of many reasons, and the mother-in- law certainly thought so at one point). Or you could argue that the roots of this discord ran much deeper, more exacting than the tension of absent love or the pressing tug of earthly possessions, sourcing its nourishment in the historical disaffection between the people of India’s two greatest cities. (The mother-in-law is from Delhi, the daughter-in-law from Mumbai). It could be any one of these reasons or all of them. Neither the participants nor their lawyers chose to specify the exact cause. Or perhaps they were just following tradition and indulging in a classic mother-in-law-daughter-in-law row.
What followed is now known, formally recorded in police diaries and court documents. Kalpana filed a police complaint against Priyanka; and also against some of the latter’s relatives for abusing and threatening her on two occasions. And when the police failed to take action, she filed a court petition in 2015.
There was no doubt some extended family gossip and much scuttlebutt in the immediate neighbourhood. The two eventually made up. “The son flew down and they talked it out,” says Akash Vajpai, a lawyer representing Kalpana’s son and Priyanka’s husband Varun Singh in court. After the reconciliation, Vajpai reveals, the mother stayed back in Delhi and Priyanka flew down along with her daughter to live with her husband in Dubai.
The hatchet was buried. Except that the details of this kitchen sink acrimony, unlike most saas-bahu spats of centuries past, did not limit themselves to neighbourhood chatter. They were available in perpetuity to any curious person with a broadband network. The Singh’s domestic discord was online.
“It began sometime last year, when my client (Varun Singh) began to get messages from some of his friends,” Vajpai says. “They were very worried for him.” Each time they happened to look up his name on online search engines, the dispute between his mother and wife showed up right on the first page of ‘results’. Though Varun had little to do with the squabble, Kalpana’s plea in court asking it to order the police to act against Priyanka and her relatives had a mention of his name. The judge had dismissed Kalpana’s petition. But the dismissal, which detailed the case history (with his name), was later uploaded on Indian Kanoon, a website that publishes Indian court judgments. “It was a very private family affair, a dispute that had once occurred and is now resolved. Nobody needed to know about it,” Vajpai says, “And now here it is for the whole world to see.”
The Singhs are a well-known family in Delhi’s social circles. In Dubai, Varun is a lawyer at a large multinational bank. His mother works at a top hospital, and his late father was one of the country’s foremost transplant surgeons. Varun and his family were distraught to learn how the specifics of their domestic squabble, long resolved, were now on the internet. Furthermore, as Vajpai argues, with employers and recruiters commonly scrutinising every prospective employee’s background before offering a job, the case could impact Varun’s career in the future.
The Singhs now want to rectify this issue. They are at the Delhi High Court (HC) demanding a right that so far does not exist in India—the right to be forgotten.
The internet is free and fair. But it also has a long memory. Everything, from gigantic amounts of data to the most intimate personal information, is available at anyone’s fingertips. The web keeps the powerful and influential accountable by making publicly important information available to everyone. Past news of fraud by someone who is standing for elections, for instance, is likely to weigh on the minds of voters who run a Google search on their candidates. But it is also true that everything, both of public importance or private nature, is now eternally available. Words once spoken now have a digital afterlife of eternity. Images once shared by a giddy teenager will be found decades down the line. Memories that could only be tickled by a dog-eared letter or musty photograph locked up in a forgotten shoebox of memorabilia now exists online forever and for everyone. An ocean of data, trivial and important, surges forth every day, carrying with it the flotsam and jetsam of our modern lives, made up of things like Instagram selfies, Tumblr and Blogger posts, Facebook tags from distant acquaintances, YouTube videos, Flickr images, and digital records of court judgments we were once part of. Anybody can dip in. Anybody can view it. Identities now are not forged in the narrow environments of the home, school and workplace alone. They are formed in the eyes of the world, made up of countless status updates, retweets and hashtags, and reddit posts. It is possible someone might know you startlingly well or even have an opinion on you without once having met you.
Identities now are not forged in the narrow environments of the home, school and workplace alone. They are formed in the eyes of the world, made up of countless status updates, retweets and hashtags, and reddit posts
Data never deletes. It only accumulates. Even if websites are taken offline, a cached version of it remains. There is a good chance, if we are still alive 50 years from now, we may have to explain our younger selves to an employer or date.
The founding fathers of our fundamental rights never really had to grapple with such questions. But we have no choice. The right to information is an important modern right. But do we also have the right to be forgotten? Can we erase some of ourselves from the web? It is not just a philosophical wrinkle in the modern timeline of our lives. It is a moral and legal quagmire.
THE IDEA OF one’s right to be forgotten first came to prominence in 2014 in Europe. Back in 1998, a Spaniard named Mario Costeja Gonzalez had hit financial difficulties and put up a property for auction, the details of which were reported in a newspaper. But several years later, whenever Gonzalez searched his name online, news of the auction still showed up. In 2014, he approached the Court of Justice of the European Union, which functions somewhat like a Supreme Court for EU member states, and successfully argued that reports of the auction and his financial difficulties had damaged his reputation. By the court’s order, the website of the newspaper, La Vanguardia, could continue to host news items about Costeja, but Google was forbidden from linking any of these news items when Costeja’s name was searched. The court went on to state that all individuals in countries within its jurisdiction had the right to ask search engines like Google to not list items that were ‘inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed’. The case set a significant precedent for what has now come to be known as the ‘right to be forgotten’.
Reactions to the court decision were divided. Several free speech and internet activists argued the ruling could undermine the freedom of speech and of the press. Their worry was that the ruling could be used to suppress information of public importance. A BBC journalist, Robert Peston, wrote a piece in 2014 about how the news organisation had received a notice that Google was deleting links to an article he had once written about a former chief executive of Merrill Lynch (Stanley O’Neal). ‘Google is confirming the fears… that the ‘right to be forgotten’ will be abused to curb freedom of expression and to suppress legitimate journalism,’ he wrote. Strangely, however, when O’Neal’s name was searched on Google, the link to Peston’s article continued to show up, leading the writer to believe that the request for deletion did not come from O’Neal. ‘It is now almost certain that the request for oblivion has come from someone who left a comment about the story,’ Peston wrote. In all likelihood, it was a comment on the report that its author wanted erased.
Large numbers of people, meanwhile, have welcomed the court ruling as a triumph of privacy. According to Google’s Transparency Report, up till now the company has received close to 7 million requests to remove links of URLs. After evaluating these requests, Google has removed more than 1.9 million so far.
Since the EU judgment, discussions around the need for such a right have emerged in other parts of the world as well. There have been court orders, new laws and guidelines for the establishment of a somewhat similar right from countries in Latin America to Russia and South Korea.
In India, the issue has only just begun to confront the judiciary. Apart from Varun Singh’s case, it has been deliberated upon at high courts in Karnataka and Gujarat recently. Raman Jit Singh Chima, policy director at Access Now, an international non-profit group whose stated aim is to defend and extend the digital rights of users at risk around the world, believes that there could be many more Indian cases in the works at lower courts. There could also be cases where individuals have directly requested websites or search engines to remove or delink content that concerns them. One such incident occurred in 2014, when an Indian media website, Medianama, received a right-to-be-forgotten request from an individual whom it had written about earlier. This individual asked the outlet to either ensure the post does not show up on search engines or modify references to him/her. If not, he claimed he would appeal to Google on the basis of the European Court of Justice judgment. Medianama , which had written about the incident in question without identifying the individual, declined the request, arguing that the ‘right to be forgotten’ does not exist in India. It wrote, ‘Unless we are directed to remove content by an Indian court of law, we don’t need to, and we won’t.’
Back in 2001, a youth named Dharamraj Bhanushankar Dave, along with some friends from Jamnagar in Gujarat, was accused of murdering another friend, Gajendrasinh Rana, over a dispute. There is a court order dismissing the case against Dave and his friends that appears online whenever you search for Dave. The order however also details the prosecution’s argument of how Dave and his friends allegedly committed the crime: they lured him to a spot, goes the allegation, and then beat the victim to death with items like an iron rod, sword and a small knife.
Several free speech and internet activists argue the right-to-be-forgotten could undermine the freedom of speech and of the press. Their worry is that this right could be used to suppress information of public importance
A trial court found that the prosecution could not establish its case beyond doubt and acquitted Dave and his friends in 2004. When the matter was appealed, the Gujarat High Court also acquitted Dave and his friends in 2007.
According to Raj Trivedi, an Ahmedabad-based lawyer who represented Dave in the Gujarat High Court, the easy availability of allegations has gone against Dave. The information hurt his attempts to find a bride on matrimonial websites, for example (the lawyer does not reveal if he did get married), and also when he applied to companies for a job. “He was acquitted of all these charges, but you see this case has chased him everywhere,” Trivedi says.
This issue returned to haunt him when Dave embarked on a plan to migrate to Australia recently. According to Trivedi, Dave worries that the availability of the case details will hinder his career once he moves there. Two years ago, Dave appealed to the Gujarat High Court, to restrain the free public exhibition of the past judgment order. Trivedi argued that because the old judgment order that detailed the allegations was a ‘nonreportable’ order, it could not be reproduced online. Courts in India create a distinction between ‘reportable’ and ‘nonreportable’ judgements. ‘Reportable’ judgments need to be reported in official legal magazines, usually because it lays down important principles of law, and can be used in the lower courts as reference. ‘Nonreportable’ judgments, on the other hand, do not need to be reported. And to cite or refer to it during proceedings at a lower court, one needs to procure a certified copy. It is a purely technical distinction meant for judicial procedures. But Trivedi tried to unsuccessfully extend its meaning— since Dave’s court order had been flagged as ‘nonreportable’—to argue that it could not be published online. After the High Court dismissed the argument on January 19th, Trivedi has been trying to convince Dave to appeal against the judgment. “We did not have to concern ourselves with such an issue in the past. But with the internet, everything has changed,” Trivedi says.
This demand for the ‘right to be forgotten’, as Chima points out, has two key aspects: the ‘right to erasure’ (where individuals can delete all personal data related to them when they leave a web service or application, thereby ensuring a user’s control over his/ her personal information), and the ‘right to de-list’ (where individuals can request search engines to remove web links from results when a search is done using their names). It is the right to de-list, as Chima argues, which is most dangerous, especially in countries like India which have no data protection laws. He argues that data protection legislation must be in place before considering a right to de-list. And such a right, if granted, must be appropriately limited. “Under no circumstances should such a right be established in the context of defamation legislation or legislation protecting honour, as it could lead to widespread removal of content and harm freedom of expression,” he says. “It becomes dangerous because currently India does not have a comprehensive data protection law. The attorney general has in fact argued that Indians do not enjoy privacy as a fundamental right.” It has been assumed that the unsaid right to privacy is contained in Article 21 of the Constitution that guarantees the right to life and liberty. But in 2015, while defending the Unique Identification programme in the Supreme Court, Attorney General Mukul Rohatgi had argued that Indians do not have a Constitutional right to privacy.
The Internet Freedom Foundation, a non-profit organisation which works for a free internet, has now joined proceedings in Varun Singh’s case after filing an intervention in the Delhi High Court. Apar Gupta, a member of the organisation, declines to comment but directs me to a note issued by entity that expresses concern about what it terms an ‘attempt to undermine our right to free expression and our right to information’. ‘The argument by the petitioner may create a broad, vague right to be forgotten allowing private parties to force the delisting of public information from our internet,’ says the note.
What is troublesome about the demand for the right to be forgotten (as seen in the European Court of Justice instance), is that it places an inordinate amount of power to determine what to list and what to de-list and suppress in the hands of firms like Google. It is, to be fair to this company, not a power it is keen to wield. Search engines would need to deploy costly resources to process every request to be forgotten. Floods of requests are likely to arise and, for Google, although it does not admit it, it would be a bureaucratic nightmare to deal with each case. A spokesperson of Google India, when contacted by Open, points out that Google is an indexing service and does not itself publish anything. “Our goal has always been to support the greatest access to information possible. Google Search generally reflects what’s on the web, so if people want content removed from the web, we ask that they start by contacting the site hosting the content,” he says. “We work hard to provide systems that enable users to flag illegal content or content that violates our policies; this includes removing content under applicable national law. We review each request we receive and ask for more information to ensure this process is not misused.”
Advocates of the right to freedom argue that websites like Google can easily set up processes to delist offending content if they wish to. “If (20th Century) Fox or Sony wants copyrighted videos removed from YouTube, Google will do it promptly without any questions. But when it comes to private individuals, they will argue that they can’t do it,” Vajpai contends.
Those arguing for the right to be forgotten in India got a boost earlier this year when the Karnataka High Court granted this right in the case of a woman who wanted her name not to appear on search engines in association with a court order regarding a previous criminal case. In 2014, Aparna (name changed upon request) sought to annul a marriage certificate issued to her and another man claiming that no marriage had ever taken place. She had also filed a police case against the man. The two eventually struck a compromise. When the man tried to revoke the case registered against him, he mentioned Aparna’s name and address in the appeal, as mandated for such a procedure.
Since then, the woman has put her past troubles behind her. She is now married to someone else and is content, according to Amar Correa, the Bengaluru-based lawyer who represented the appeal to get her name hidden. But the old case continued to show up along with Aparna’s name and address. Her father filed a petition to mask or remove her name from the case order. The court granted her request claiming that this ‘is in line with the trend in Western countries of the ‘right to be forgotten’ in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned’. An online search now does not reflect the old case. But the High Court website, as the court ordered, can host a copy of the order, where the woman’s name would continue to appear.
Debarati Halder, an advocate who runs the Bengaluru-based Centre for Cyber Victim Counselling, believes the right is an absolute necessity today. “Several people, youngsters and adults, often find private images and content they might have shared with someone once leaked online. To remove it, you have to go to the police— such a lengthy and embarrassing process,” she says. “Why can’t they go to a website or Google directly and tell them to remove it?”
A few months ago, a man approached her for counsel after images of him with a sex worker found their way online. The phone with which he had taken the images, she thinks, probably got hacked. He approached the police, but they apparently did not take his complaint seriously. “Imagine his condition,” she says, “He was so troubled and worried that his family would soon discover them.”
The granting of such a right to the Singhs, as Vajpai points out, will not be akin to purging history. “You have to remember we are only asking to hide the online details. We are concerned about how the information now appears online.” But in an era where the world opens up to us through the algorithm of a search engine, if it doesn’t exist on Google, does it even exist?