Protection of Personal Information Can’t Co-exist in Open-court System, Says Kerala HC


Edited by: Pathikrit Sen Gupta

Last update: 23 Dec 2022, 20:44 IST

The court was dealing with a series of petitions raising objections against the publication of judgments/orders in the respective cases by some law journals, placing the personal information of the petitioners/respondents in the public domain which could be accessed through Google.  (Image credit: Shutterstock)

The court was dealing with a series of petitions raising objections against the publication of judgments/orders in the respective cases by some law journals, placing the personal information of the petitioners/respondents in the public domain which could be accessed through Google. (Image credit: Shutterstock)

However, the HC said that in family and other matters where the law does not allow an open court system of justice, the registry of judges will not publish the personal information of the parties if the parties so request.

The Kerala High Court has held that a claim to protection of personal information based on the right to privacy cannot coexist in an open court system of justice.

The HC said that the open court system of justice is a fundamental aspect of a democratic ecosystem like India and mere dissemination in the digital space cannot be said to be a violation of privacy rights in the absence of a law enacted by Parliament in this regard. .

The court was dealing with a series of petitions raising objections by Indian Kanoon and other law journals against the publication of judgments/orders in respective cases by placing personal information of petitioners/respondents in the public domain which could be accessed through Google.

While stating that it had caused them great prejudice, mental trauma and agony, the petitioners argued that the judgment violates the fundamental right to be forgotten in digital eternity by preserving it forever in the digital domain.

The bench essentially had to decide whether, in writ petitions in family matters, a party may request an order to suppress his name and address in the cause title and in the body of the judgment in order to protect his right to privacy.

A division bench of Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen opined that the right to be forgotten can only be applied retrospectively, to information already disclosed, rather than claiming to conceal the information ex-ante.

“The right to be forgotten cannot be asserted in the current procedure or in a procedure of new origin and it is up to the Parliament to establish the reasons for invoking this right,” said the panel.

He emphasized that the modern government will have to solve various problems related to the legal ecosystem, from assimilating data with different stakeholders, focusing on governance, welfare and welfare of citizens.

However, as the court clarified, depending on the facts and circumstances and duration of the case, the court may allow a party to exercise the right to be forgotten to deindex and remove personal information from Internet search engines.

He added that the court, where appropriate, also has the right to refer to the principles related to the right to erasure in order for a party to erase and delete personal data on the Internet.

In addition, as the board declared and said, in family and marriage cases and in other cases where the law does not recognize the system of open trial, the Registry of the judge will not publish or allow to be published. on the parties’ website or in any other information system maintained by the court, if requested by the parties to that case.

While hearing the matter referred to a single judge bench, the division bench observed: “With the advancement of technology, the identity of an individual in the virtual public space has become digitally immortal and in a liberal and democratic system, the Court cannot claim a monopoly over the data in the hands of the judiciary.”

The court added that the courts have not formed a policy on open data and the greater public interest compels the judiciary to share data with the public, stakeholders, researchers, government, etc.

Regarding the publication of judgments/orders, the bench said that it is part of freedom of speech and expression. “The court is open to everyone. The Court cannot ignore the protection of publishers of judgments under Article 19(1)(a) of our Constitution. Proclamation and publication of judgments are part of freedom of speech and expression and that cannot be taken away lightly without the aid of law,” the HC said.

However, it has directed the court registrar to publish privacy notices within two months in English and Malayalam languages ​​on the websites of the HC and the district justice.

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