Right To Be Forgotten - Kerala High Court Allows Litigants To Seek Deletion Of Personal Identities In Family Cases & In-Camera Trials

Pronouncing a significant verdict on the "right to be forgotten", the Kerala High Court on Thursday held that personal information of the parties may not be published on the High Court website in respect of the family and matrimonial cases if the parties in those cases make such a request. 

While holding that the claim for protection of personal information based on right to privacy cannot coexist in open court justice system, the Court however permitted the masking of personal identities in matrimonial cases and in cases where the law does not recognize the open court system (cases for rape and sexual offences where the trial is held in-camera).

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen, said

"In family and matrimonial cases arising in family court and jurisdictions otherwise, and also in other cases where the law does not recognize open court system, the registry of the Court shall not publish personal information of the parties or shall not allow any form of publication containing the identities of parties in the website or any other information system maintained by the Court if the parties to such litigations so insist". 

However, the Court held that in summation, it could be held that the claim for protection of personal information based on right to privacy cannot coexist in open court justice system. 

"We hold that right to be forgotten cannot be claimed in current proceedings or in a proceedings of recent origin. It is for the legislature to take ground for invocation of such a right". 

Nevertheless, it said that the court may, having regard to the facts and circumstances of the case, and duration involved in relation to crime or any other litigation, permit the party to invoke the above right, and remove the personal information of the party from search engine.

"Court in appropriate cases, is also entitled to invoke principles relating to right to erase personal data available online", it was added. 

Also read - 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

The petitions that were filed before the High Court, sought the removal of identifiable information from judgments or orders published in various online portals and the High Court Website, on the ground that the same amounted to violation of the Right to Privacy and Right to be Forgotten.

During the hearings, Standing Counsel appearing for the High Court of Kerala (6th respondent), Advocate B G Harindranath, submitted that the right to be forgotten is not absolute, and that it has to be balanced with the competing interest balancing the right to know and the right to be forgotten should be left to the Legislature and not to the Court. The Counsel emphasized that merely because the person is acquitted it only means that the prosecution did not meet the threshold of beyond a reasonable doubt in a criminal case; he does not get an indefensible right to get his name erased from the Court records as there is no such right available to a person involved in a criminal case who stood a trial to get his name erased from the record.

In the written statement filed by the 6th respondent, it was averred that Data privacy, as usually addressed, has a wide scope and includes personal, informational or organizational privacy. While it is required in the larger public interest to protect one's right to privacy, it shall also be maintained that the law is not too sensitive to these concerns; any legislation enforcing the right to privacy shall not recognize it as an absolute right, but as a right with reasonable exceptions, he submitted.

"Everyone has the right to prevent unwanted invasions into his private and family life, his home and correspondence. It reflects both the individual's psychological need to preserve an intrusion-free zone of personality and family and prevent the anguish and trauma when that zone is violated. Privacy also connotes a right to be left alone. It is also important to accentuate the fact that privacy is not lost or conceded just for the reason that the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being", the counsel averred. 

Advocate Babu Paul submitted that with regards to the matrimonial matter, there is already an office memorandum issued by the High Court, so there can't be any doubt in that regard. He submitted that any order of the Court is a public document according to Section 74 of the Evidence Act, and there arises a conflict between Section 74 and the Right to Privacy.

The Counsel appearing for Indian Kanoon Advocate Santhosh Mathew contended that in the Writ Petition, they've sought for a mandamus directing Indian Kanoon to remove the judgments, which is not maintainable since Indian Kanoon is not carrying out a public duty. It was further contended that reproduction of Court orders cannot form a basis for an action for violation of privacy, as these orders fall under the category of the public document as per Section 74 of the Indian Evidence Act. 

Referring to the decision in the case of Karthick Theodre v. Registrar General, it was also contended that the Right to be forgotten cannot exist in the sphere of the administration of justice, particularly in the context of judgments delivered by the Court, and exceptions to these provisions can be seen in cases of victims of rape, and other sexual offences where the Supreme Court itself has directed that the identity of the victims cannot be disclosed and statutory prohibitions against the disclosure of the identity of the victim and witnesses are also found in the provisions like 428 A IPC, Section 23 POCSO Act etc. "Unless the case falls within the ambit of the exceptions, the general principle must govern. No judgement of any Court has been cited to show that the prerogative power of the Court under Article 226 extends to alteration of its own records...Court cannot undertake the exercise of issuing directions to recognise a right to be forgotten when no judicially manageable standards exist in the first place and in the absence of statutory backing."

Advocate Andrew, who was appearing on behalf of Google Inc. submitted that there are no qualms regarding High Court website itself displaying the judgment, and that anyone who wanted to research and find a particular decision could simply visit the Court website to do so. However, the grievance is with respect to private non-State media such as IndianKanoon uploading such details, by extracting the entire text of judgment from the High Court website. He submitted that there are no rules regulating such activities.

In his arguments for Google LLC, Senior Advocate Sajan Poovayya submitted that once a material is put in public domain, i.e., the first publication (through High Court website), then there is an inherent constitutional right that such materials are available for assimilation, and people must have access to it. Thus, he contended that there cannot be an order directing an internet intermediary to remove content from the internet, especially outside the provisions of reasonable restrictions under Article 19(2). 

Poovayya submitted that right to be forgotten cannot used as a tool to "erase history". He contended that the said right is a small facet of "informational privacy" which forms an integral part of right to privacy. Therefore, the right to be forgotten, wherever it is asserted, is only in the informational privacy world because outside of it, there is no concept of the right to be forgotten.

He further contended that the right to privacy cannot be used as a "preemptive weapon" to prevent the dissemination of information to the public domain. He submitted that in our Constitutional set-up, free speech under Article 19(1)(a) prevails and any restriction on this right should be found within the reasonable restrictions provided under Article 19(2) of the Constitution. Poovayya also submitted that in sensitive cases where it is essential to mask identity of parties, law prescribes statutory duty. 

Poovayya added that, the "architecture of the Information Technology Act is not such that it gives the intermediary a carte blanche escape route from any clutches of the law in this country, and that it is also not the case where most large social media intermediaries or intermediaries governed and operated in foreign jurisdictions do not indicate that they would not abide or subject themselves to Indian courts". He pointed out that the crux of the issue in the present case was not whether the intermediary is or is not complying with the 2021 Rules. The counsel stated that if the intermediary does not comply with the Rules, the safe harbour protection under Section 79 of the Act would be removed, holding the intermediary liable for the information that has been published.

In this light, the Counsel pointed out that the case herein was whether a particular information as such could be effaced from the public domain entirely.

"It is not the case of whether LiveLaw is liable for what has happened, whether Google is liable for what has happened, [or] who should pay compensation... The petitioner seeks that there is a particular information in public domain, which has proceeded therein through court proceedings, and consequently, whether there should be a direction for LiveLaw or any other intermediary not to have it on public domain", the Senior Counsel submitted.

Poovayya emphasized that in Virginia Shylu, the question was whether Google would be liable for throwing up a search result when someone seeks to obtain information about her in terms of the Court case, since it had already been made available on the Court website, as well as had been reported by other media. The Counsel in this light added that even if such other media houses could be held liable - though quickly adding that in this case they certainly were not so liable, Google would still would not be held liable, provided the provisions of Sections 2(a), 2(b) and 2(c) of the Rules are followed. He also submitted that Rule 3 adds statutory flavour to the Common Law Test of Due Diligence, as well.

He further stressed that the right to be forgotten could not be elevated to such a status, since the third party has a right to receive, comment, search and research such information which has already been made available on the public domain.

Advocate Kala T. Gopi appearing for another petitioner, who was charged with stalking a lady, contended that even though the case against him was quashed, the details regarding the incident could still be found on Google. "The fact that the judgment comes in public domain itself is wrong", the counsel argued.

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

Detailed report on the judgment can be read here - 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