The Kerala High Court on Thursday held that a claim for the protection of personal information based on the right to privacy cannot co-exist in an open court justice system. [Virginia Shylu v. Union of India]
In a significant judgment, a Division Bench of Justices A Muhamed Mustaque and Shoba Annamma Eapen further held,
“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 fix grounds for the invocation of such a right.”
However, it held that courts, after considering the facts and circumstances of a 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 said.
Justice A Muhammed Mustaque, Justice Shoba Annamma Eapen
Justice A Muhammed Mustaque, Justice Shoba Annamma Eapen
Pertinently, the Court declared that in proceedings before family courts, the court registry shall not publish any personal information on any of the information systems maintained by it.
“We declare and hold that in family and matrimonial cases, arising from the Family Court jurisdiction or otherwise and also in other cases where the law does not recognise the 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 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,” the judgment stated.
The Court was hearing a batch of pleas moved by certain litigants seeking erasure of their personal details which were appearing on Google search and on legal resource website Indian Kanoon, despite their acquittal in the those cases. Some of the petitioners in the batch of cases before the Bench were involved in matrimonial and custody disputes.
One such plea was moved by a consultant dentist who was aggrieved by the fact that a bail order published on Indian Kanoon, containing his personal details, was the first result of an internet search, despite his subsequent acquittal in the case.
Describing the experience as traumatic, especially because the search result displayed his name, father’s name, address, and a wrong crime number, the petitioner stated that the same infringes upon his right to privacy.
“Even if a Law Reporter has the right to publish court judgments, their right does not extend to show a summary of past criminal records in a google search,” the plea stated.
Suggesting that the popular judgment database could de-index the particular bail order from the search result, the petitioner sought recognition of his right to be forgotten as a facet of the right to privacy.
Advocates Johnson Gomez, Sanjay Johnson, John Gomez, Sreedevi S, Adil MH, and Alint Joseph represented the petitioner.
Indian Kanoon responded to the plea, asserting that the right to privacy cannot be extended to protect an individual from publications based on public records, including court orders.
It was contended that the petition sought to bypass legislative procedure underway to statutorily recognise the right to be forgotten.
Relying on the judgments of the Supreme Court in R Rajagopal v. State of Tamil Nadu, KS Puttaswamy and Navtej Singh Johar , Indian Kanoon submitted that “the right to privacy under Article 21 cannot give rise to the claim that court records cannot be published.”
Referring to Clause 20 of the Personal Data Protection Bill, 2019, it was argued that the plea was premature since the legislature was actively considering the viability of recognising the right to be forgotten.
Advocates Santhosh Mathew, Anil Sebastian Pulickel, and lawyers associated with Internet Freedom Foundation represented Indian Kanoon.
The High Court itself was made party to the petitions and on its behalf, it was contended by Advocate BG Harindranath that the right to be forgotten is not absolute and must be balanced with the right to know.
It was argued on behalf of Google LLC that once material is placed in the public domain, through the initial publishing on the High Court website, an order requiring the internet intermediary to delete information from the internet cannot be issued as it would fall beyond the scope of reasonable limits under Article 19(2) of the Constitution.
It was also contended that in the current era of Web 3.0 and increasing use of Artificial Intelligence, most intermediaries and search engines operate from a single platform globally and as such, it would be close to impossible for the intermediaries to determine if they are in compliance with the law everywhere, as the law differs across nations.
Senior Advocate Sajan Poovayya and Advocate Aditya Vikram Bhat represented Google LLC.
The Court issued separate directions with respect to each of the pleas.
In the plea moved by the dentist, the Court refused to grant an order to remove his information from online platforms since he was involved in a criminal case.
“The petitioner was involved in a crime. His grievance for removal from the digital domain of his involvement in a criminal case and of a bail order obtained by him cannot be acceded to. The writ petition is, therefore, dismissed,” the judgment stated.
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