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

Observing that legislature alone is competent to enumerate grounds for claiming right to be forgotten and carve out exceptions to the claims of such a right, the Kerala High Court on Thursday said in the absence of legislation, the court may have to recognise the right and direct removal of such content available online on a case-to-case basis.

The division bench Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen, therefore took the view that the court cannot prevent the dissemination of case details in the public domain citing the privacy of individual litigants. 

"In individual cases, the Court may, after adverting to time and space, order the erasure of past records. However, nothing prevents the Legislature from bringing in Legislation recognizing the right to be forgotten to erase such records after the expiry of such period as it deems fit to fix. Further, laying down the grounds when such a right to be forgotten can be exercised is the prerogative of the Legislature. As the right to be forgotten is not an absolute right, it is crucial that the legislature enumerates the grounds when an individual can claim this right," the Court observed. 

As regards the publication of case details on the court websites, it observed that while the approach of the judiciary in helping litigants to be informed about their case in an easily accessible way though is a laudable service to them, it has its own pitfalls, since they are not informed that such details would be published. 

"We have overruled the objections on the ground of privacy and the right to be forgotten but that doesn't mean that the judiciary will have unbridled power over the choices exercised by a litigant who has approached the Court seeking justice. The litigant must be put on notice about the publication of judgments online," it noted.

It therefore directed that it would be desirable for the High Court to consider the constitution of grievance redressal mechanism and appoint an officer to redress grievances on the administrative side in this regard.

The court acknowledged that the publication of the judgments online and allowing the same to remain online forever may infringe upon the right of a party based on the right to be forgotten. 

"If the judgments of the Court are allowed to remain online for eternity, certainly, it would invade such rights of the parties. The problem that has arisen in the absence of legislation is determining the period or circumstances under which a party can invoke the aforesaid right," said the court.

Though it accepted judgments are public records and, making them available to the public to view through the process of a search made online, cannot be found fault with, the court also said Google is not a mere passive conduit, and can create a tool and identify particular data and remove the same.

The judgement was passed on a batch of petitions placed before the Court on a reference order of Justice Anil K. Narendran in XXX v. Union of India dated March 15, 2021, wherein the question related to right to be forgotten was raised. 

The court answered the following questions raised before it. 

Criminal Records And The Right To Be Forgotten

The court said the public records relating to the petitioners who were either accused or parties to the criminal proceedings cannot be erased forever. 

"In the normal course of human conduct, time will erase memory. This particular problem in a digital space of allowing information to remain forever would certainly affect the right claimed as a right to be forgotten. The internet has unlimited capacity to remember. The Court cannot generally balance the interest claimed by the individuals and the information available in the digital domain for eternity," it added.

However, the bench said courts would be able to form an opinion after adverting to the attending circumstances of a particular case to order the removal of personal data or erasure of such data from digital space after considering the factors relating to such cases.

Matrimonial, Family, Custody Matters

The court said in matters related to family disputes, matrimonial disputes, child custody, invoking writ jurisdiction of this Court, the Court shall not publish details of the parties to identify the cause before the Court if the party/ies desire so. 

"We are of the view that in such matters, on request of the parties, the Registry shall mask the names and details of the parties, in recognition of the right to privacy in relation to matrimonial and related affairs," it said.

The bench ordered that Registry of the Court shall not publish personal information of the parties or shall not allow any form of publication containing the identity of the parties on the website or on any other information system maintained by the Court if the parties to such litigation so insist.

"We hold that the Registry of the High Court is bound to publish privacy notices on its website in both English and Vernacular languages," it said.

Publishing Of Judgments By Indian Kanoon and In Other Online Law Journals

The court said under the Copyright Act 1957, reproduction for judicial reporting, or reproduction or publication of judgments are not infringements of copyright.

"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," said the bench.

Observing that the courtroom is open to all, the court ruled:

"Reporting and publishing judgments are part of freedom of speech and expression and that cannot be taken away lightly without the aid of law." 

Role Of Courts In Absence Of Legislation

While the court declared that a claim for the protection of personal information based on the right to privacy cannot co-exist in an Open Court justice system, it said having regard to the facts and circumstances of the case and duration involved related to a crime or any other litigation, may permit a party to invoke the above rights to de-index and to remove the personal information of the party from search engines. 

"The Court, in appropriate cases, is also entitled to invoke principles related to the right to erasure to allow a party to erase and delete personal data that is available online," it added.

Ongoing Or Recent Proceedings

The court said the right to be forgotten if claimed in ongoing proceedings would be an affront to the principle of open justice and the larger public interest.

"The 'right to be forgotten' is contextually related to the past, and cannot be claimed as a 'right in presentium'," said the bench.

The court said it cannot make a declaration in current proceedings, acknowledging the right to be forgotten to erase data for the current and the future.

"Thus, we are of the opinion that the claim to erase or redact personal information based on the right to be forgotten, in current proceedings or proceedings concluded recently is a myth and cannot be relied on to prevent the uploading of judgments in the Court Information System," it said.

Case Title: Vysakh K.G. v. Union of India & Anr. and other connected cases

Citation: 2022 LiveLaw (Ker) 665

Click Here To Read/Download The Judgment