Reporting And Publishing Of Judgments Part Of Freedom Of Speech And Expression, Cannot Be Taken Away Lightly: Kerala High Court

The Kerala High Court on Friday ruled that reporting and publishing of judgments are part of freedom of speech and expression.

Dealing with petitions seeking enforcement of the 'right to be forgotten' against uploading of court orders or judgements on the internet, the division bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen said:

"The Courtroom is open to all. The Court cannot gloss over the protection available to publishers of judgments under Article 19(1)(a) of our Constitution. Reporting and publishing judgments are part of freedom of speech and expression and that cannot be taken away lightly without the aid of law." 

The Court said the identity of the judiciary based on public confidence is not ordinarily possible without there being free flow of information on judicial functioning.

It noted that often the media carries headlines of breaking news with minute-by-minute details of the Court proceedings, including what the judge spoke during the proceedings in such cases where a public figure is involved.

"In open justice, as we discussed earlier, the Courtroom must afford an opportunity to the public to form opinions about its functioning. This is the foremost consideration in building public confidence," said the bench.

The court explained that it is not necessarily the case details of 'X' or 'Y' that a commoner wants to know but the information on how their case is decided in the court of law.

"However scant curiosity may have been shown in Court proceedings, Courts cannot count on the number of people interested, to deny such information from coming into the public sphere. The sense of public sphere must guide the Court in allowing judgments to come into the public domain," said the bench.

The bench also noted that Section 153-B of CPC and Section 327 of Cr.P.C. make the courts "statutorily public spheres where people are allowed to view proceedings and form public opinion"

The very idea of keeping Courtrooms open to the public is to safeguard the open court principle which is a fundamental aspect of the democratic ecosystem, said the division bench.

The court further said the rationale behind Section 74 of the Evidence Act making judicial records public records is to allow the public to have access to the information in such records.

It further said that in open court proceedings, any onlooker is entitled to watch proceedings and report any case that the court considers. 

"If that cannot be prevented, can Courts prevent uploading and publishing of the judgments online?" it asked. 

The court said a litigant may have a plethora of reasons to seek prevention of disclosure of names or the content. "That perhaps requires a balancing exercise to be generally guided by the governing informational policy of the judiciary," it said.

The court further said that while it cannot ignore the privacy rights of individuals, it also "cannot ignore the larger public interest of the Court making judicial function open to all to ensure public confidence".

"The public has every right to know how a judge conducted a particular case with details of the parties, contents etc. The digital platform only allows easy access to such information through the digital space. Nevertheless, it was available to the public in all respects in the brick-and-mortar system as well. The mere extension of an Open Court system in a digital space cannot itself be called violative of privacy rights, in the absence of any law laid down in this regard by the Parliament. Law has already recognised the Open Court system."

The bench also said the Courts can have no copyright claim over judgments since the same forms part of public records. Under the Copyright Act 1957, reproduction for judicial reporting, or reproduction or publication of judgments are not infringements of copyright, it added.

"The judgments forming part of the Court records are public documents as referable under Section 74 of the Indian Evidence Act. There cannot be any dispute in regard to publishing the contents of the judgment even if such judgments are ordered to be masked in regard to the details of the parties to protect their identity", the Court observed. 

It however said that in the absence of legislation, the court may have to recognize the right to be forgotten and direct removal of such content available online only on a case-to-case basis.

Read More: Right To Be Forgotten | Kerala High Court Says Legislature Alone Competent To Enumerate Grounds But Till Then Courts Can Decide On Case-To-Case Basis

Case Title: Vysakh K.G. v. Union of India & Anr. And Other Connected Cases

Citation: 2022 LiveLaw (Ker) 665

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