A truly remarkable piece of Judgement has emanated from the Kerala High Court on 22nd December 2022 from the bench of Honourable Justices A Muhamed Mustaque and Shoba Annamma Eapen regarding “Right to Forget”.
The 138 page judgement is worth studying like a text book on understanding several aspects surrounding the issue. The coverage within the judgement exhibits a deep understanding of the international scenario on Privacy and provisions of GDPR.
I will try to provide a gist of the Judgement which is my first impression on the learnings that we can take out of this judgement and leave it for further detailed discussion some time later.
The judgement is a common judgement for 9 different writ petitions (26500/2020, 6687/2017, 20387/2018, 7642/2020, 8174/2020, 21917/2020, 2604/2021, 12699/2021 & 29448/2021 ) some of which are from those whose names have appeared in Criminal cases and some of which are from those whose names have appeared in Family Court cases.
The final findings are as follows.
i. We declare that a claim for the protection of personal information based on the right to privacy cannot co-exist in an Open Court justice system.
ii. 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, the Court, 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.
iii. 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.
iv. We hold that the Registry of the High Court is bound to publish privacy notices on its website in both English and Vernacular languages.
The Court also stated the following in respect of the writ petitions on hand.
(i). W.P. (C) No. 26500 of 2020:
The petitioner was involved in a crime. Thereafter, based on an order of this Court, the criminal complaint was quashed as the de facto complainant raised no objection. We are of the view that this is not a case where the petitioner can invoke the right to be forgotten to delete past records.
We, therefore, decline the prayer and dismiss the petition.
(ii). W.P. (C) No. 21917 of 2020:
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.
(iii). W.P. (C) No. 8174 of 2020:
The matter pertains to a habeas corpus petition. The petitioner approached this Court alleging the detention of her daughter.
We do not find any reason to hold that the personal information shall not be published online. The writ petition fails, and is accordingly, dismissed.
(iv). W.P. (C) No. 6687 of 2017:
The petitioner approached this Court for solemnising marriage under the Special Marriage Act.
Since the matter is related to matrimonial and family affairs, and we have recognised the right to privacy in such matters, we hold that the petitioner is entitled to the relief sought. This Court has already granted interim relief in tune with the final reliefs sought.
We make the interim relief granted absolute.
(v). W.P. (C) No. 7642 of 2020:
The petitioner was involved in a criminal case related to an allegation of rape. This Court had quashed the proceedings against the petitioner and his father.
We are not inclined to grant reliefs sought for removal of the judgment in the public domain.
The writ petition fails and is, accordingly, dismissed.
(vi). W.P. (C) No. 20387 of 2018:
The petitioner was involved in a criminal case and approached this Court for quashing the criminal case. The petitioner and the de facto complainant settled. The criminal case was quashed in the year 2013.
According to us, the petitioner is not entitled to the relief sought. Dismissed.
(vii). W.P. (C) No. 12699 of 2021:
The petitioner approached this Court earlier in a Transfer petition related to a matrimonial case.
The petitioner also approached this Court in regard to a dispute related to passport arising out of a matrimonial dispute. Considering the nature of the dispute involved, and the publication of the judgment in the public domain, we are of the view that a right to privacy would be invaded.
Accordingly, we allow this writ petition and direct Google LLC to de-index the names and also direct the Registry to ensure Indian Kanoon hides the personal information of the parties online.
(viii). W.P. (C) No. 29448 of 2021:
The petitioner was involved in a crime. The petitioner is aggrieved by the publication of the order in bail online. In light of our views, Writ Petition is only to be dismissed. Accordingly dismissed.
(ix). W.P.(C) No. 2604 of 2021:
The petitioner had approached this Court earlier in O.P.(FC).No.64/2019 to obtain custody of the minor child. By publication of the judgment online, the identity and name of the child are revealed.
That being the case, the petitioner is entitled to relief in this case.
There shall be a direction to the additional respondent Google LLC to de-index the judgment in O.P.(FC).No.64/2019 and there shall also be a direction to the Registry to ensure that Indian Kanoon redacts the names and personal information of the parties or removes the publication of the judgment.
The Court also added:
The Registrar of the High Court of Kerala is directed to publish the privacy notice within two months in both English and Malayalam languages on the websites of the High Court and the District Judiciary.
The individual judgements in different petitions reveal the logic behind the Jurisprudence being reflected in this judgement.
We will continue this discussion…. on the detailed content of the Judgement in subsequent articles…
Naavi
All articles in the series:
Hats off to the Kerala Judgement on Right to Forget-5: Evolution of the Right to be forgotten
Hats off to the Kerala Judgement on Right to Forget-4: Need for Transparency in Judiciary
Hats off to the Kerala Judgement on Right to Forget-3: Right to Forget is not Right to Anonymity..
Hats off to the Kerala Judgement on Right to Forget..2: Ratio Decidendi in Puttaswamy Judgement
Hats off to Kerala High Court for it’s treatise on Right to Forget
