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


In a “significant judgment on right to be forgotten,” the Kerala High Court on Thursday said that personal information of parties cannot be published on the High Court’s website in relation to family and matrimonial cases, if the parties in such cases do so. such a request.

Although the claim for the protection of personal information based on the right to privacy cannot coexist in the open court system of justice, the Court nevertheless allowed personal identity in matrimonial cases and in cases where the law does not recognize the court system (cases). in camera trial for rape and sexual crimes).

They form the Division Bench Justice A. Muhamed Mustaque and Judge Shoba Annamma Eapenhe said

“In family and matrimonial cases filed in family courts and other jurisdictions, and in other cases where the law does not allow an open court system, the Court Registry will not publish or accept any form of publication of the parties’ personal information. On the website or maintained by the Court receiving the identity of the parties in any other information system, if the parties to these cases so request.”

However, the Court said, in short, that a claim to the protection of personal information based on the right to privacy cannot coexist in an open court system of justice.

“We believe that the right to be forgotten cannot be asserted in the current procedure or in a procedure of new origin. It is up to the legislator to take the reasons for asserting this right.”

However, he said that the court, taking into account the facts and circumstances of the case, and taking into account the duration of the crime or any other case, may allow the party in favor of the above right, and to remove the personal data of the party. search engine

“The court, in the appropriate case, also has the right to invoke the principles of the right to delete personal data online,” he added.

Also read – The right to be forgotten | Kerala High Court says only legislature has power to enumerate causes but till then courts can decide on case by case basis

The petitions filed before the High Court requested the removal of identifiable information from judgments or orders published on various online portals and on the High Court’s website, on the grounds that the right to privacy and the right to be forgotten were violated. .

During the hearings, Standing Counsel appeared for the High Court of Kerala (Respondent 6), Advocate BG Harindranath, stated that the right to forget is not absolute, and that it must be balanced with the interest of competition, balancing the right to know and the right to forget must be left to the Legislature and not to the Court. The lawyer emphasized that the fact that the person was acquitted only means that the prosecution did not fulfill it beyond a reasonable doubt in a criminal case; he does not acquire an indefensible right to have his name struck off the records of the Court, as such a right is not available to a person involved in a criminal case who tried to strike his name off the record.

In the submission submitted by the 6th respondent, it was stated that data privacy, as it is usually addressed, has a broad scope and includes personal, informational or organizational privacy. While it is necessary to protect one’s right to privacy in the larger public interest, the law will remain insensitive to these concerns; Any legislation enforcing the right to privacy will not recognize it as an absolute right, but as a right with reasonable exceptions, he said.

“Every person has the right to avoid unwanted intrusions into his private and family life, his home and correspondence. It reflects the individual’s psychological need to preserve an intrusion-free personal zone of self and family and to prevent distress and trauma when that zone is violated. Also the right to be left alone. states. Furthermore, it is important that privacy is not lost or accepted just because the person is in a public place. Privacy is attached to the person, as it is an essential aspect of human dignity.”said the consultant.

Barrister Babu Paul He stated that with regard to the matter of marriage, there is already an official memorandum made by the High Court, and therefore there can be no doubt. He submitted that any court order is a public document under Section 74 of the Evidence Act and a conflict arises between Section 74 and the Right to Privacy.

Indian Kanoon’s lawyer appears Advocate Santhosh Mathew In the writ petition, he said they have sought a writ of mandamus directing Indian Kanoon to vacate the judgments, which is not maintainable as Indian Kanoon is not discharging any public duty. It was further held that reproduction of Court orders cannot constitute an action for invasion of privacy as such orders fall under the category of public document under Section 74 of the Indian Evidence Act.

Referring to the decision taken in the case Karthick Theodre v. General Registeralso that the right to forget cannot exist in the scope of the administration of Justice, especially in the context of judgments given by the Court, and exceptions to these provisions can be seen in the cases of victims of rape and other sexual crimes, the Supreme Court itself that the identity of the victims cannot be disclosed and also legal prohibitions to disclose the identity of victims and witnesses are found in the provisions like Section 428 A IPC, Section 23 POCSO Act etc.” If the case does not fall within the ambit of the exceptions, the general principle should govern. No judgment of any court has been cited to the effect that the prerogative power of the Court under Section 226 extends to altering its records … The Court cannot take it upon itself to issue guidelines for the recognition of the right to be forgotten in the absence of judicially manageable rules and legal protection in the first place.”

Andrew the lawyer, appearing on behalf of Google Inc. stated that there is no objection to the Supreme Court’s website displaying the judgment itself, and that anyone who wanted to research and find a particular decision could visit the Court’s website for that purpose. However, the complaint is against private non-state media such as IndianKanoon uploading these details by extracting the full text of the judgment from the High Court website. He stated that there are no rules governing such activities.

In arguments in favor of Google LLC, SSenior Advocate Sajan Poovayya stated that when a material is placed in the public domain, i.e. in the first publication (via the High Court website), then there is an inherent constitutional right to have that material available for assimilation, and people should have access to it. Thus, he said that there can be no order for an internet intermediary to remove content from the internet, especially outside of the reasonable restrictions in Article 19(2).

Poovayya stated that the right to be forgotten cannot be used as a tool to “erase history”. He said the said right is a minor aspect of “informational privacy” which forms part of the right to privacy. Therefore, the right to be forgotten, where it is claimed, exists only in the world of informational privacy, outside of which there is no concept of the right to be forgotten.

Furthermore, the right to privacy cannot be used as a “preventive weapon” to prevent information from being released into the public domain. He stated that in the structure of our Constitution, the freedom of expression according to article 19, letter a) prevails and any restriction on this right must be found in the reasonable restrictions provided for in article 19, paragraph 2 of the Constitution. Poovayya also pointed out that in sensitive cases where it is essential to conceal the identity of the parties, the law imposes a statutory duty.

Poovayya added “The architecture of the Information Technology Act is not one that gives an intermediary a carte blanche to escape the clutches of the law of this country, and it is not the case that most of the large social media intermediaries or intermediaries were governed and operated in foreign jurisdictions, which does not indicate that they will not be subject to Indian courts.. He pointed out that the crux of the matter is not whether the intermediary complies with the 2021 Rules. According to the lawyer, if the intermediary does not comply with the Rules, the protection established in Article 79 of the law would be removed, making the intermediary responsible for the information published.

In response, the council stated that it was the case that certain information could be completely removed from the public domain.

“It’s not whether LiveLaw is responsible for what happened or not, whether Google is responsible for what happened or not, [or] who should pay compensation… The applicant seeks certain information in the public domain, which has been initiated through legal proceedings, and as a result of which there should be a direction that LiveLaw or any other intermediary should not have it in the public domain. “It was presented by the Advocate General.

Poovayya emphasized that Virginia Shylu, the question was whether Google would be liable for throwing out a search result when someone wanted to get information about the court case, which was already available on the Court’s website, and as others had reported. the media This lawyer added that while those other media houses could be held liable – although he was quick to add that they certainly were not in this case, Google would not be liable under the provisions of Section 2. , Sections 2.b) and 2.c) of the Rules are complied with. He also stated that Rule 3 adds a regulatory flavor to the Due Diligence Common Law test.

He also emphasized that the right to be forgotten cannot be elevated to this situation, as the third party has the right to receive, comment, search and investigate this information that is already available in the public domain.

Kala T. Gopi Advocate Speaking for another petitioner, who was accused of harassing a lady, although the case against him was dismissed, he said that details about the incident could be found on Google. “It is wrong to enter the judgment into the public domain,” argued the lawyer.

Case Title: Vysakh KG Union of India and Anr. And other connected cases

Quote: 2022 LiveLaw (Ker) 665

Click here to read/download the judgment

A detailed report on the judgment can be read here – The right to be forgotten | Kerala High Court says only legislature has power to enumerate causes but till then courts can decide on case by case basis

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