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[This is a continuation of our earlier article on the Kerala Judgement on Right to Forget]

The Kerala High Court Judgement on Right to Forget is a landmark judgement for the reason that it went into details of the Definition of Privacy and evaluate the Right to Forget in the context of need to ensure transparency of the Court proceedings.

The judgement also went into an analysis Right to Forget as a concept which finally resulted into the second conclusion that the Court came to namely, “The right to be forgotten cannot be claimed in current proceedings or in a proceedings of recent origin.”

In the course of its arriving at the decision, the Court observed as follows:

The right to be forgotten is a right that developed as a consequence of the dignity of an individual, adopted to forget the past and live in the present. It is based on the broader rights in Articles 7 and 8 of the Charter of Fundamental Rights of the EU (Charter).

The Data Protection Directive of 1995 (Directive 95/46/EC) contained no express right to be forgotten. But the Court of Justice of the European Union (CJEU) in its decision in the Google Spain v. AEPD [Case C-131/12 Judgment of the Court (Grand Chamber) Google Spain SL v. Agencia Española de Protección de Datos (AEPD], held that an implied right existed in the Directive.

In Google Spain v. AEPD, the grievance of the plaintiff was that links to newspaper articles relating to his insolvency proceedings were available on a Google search of his name. Contending that although the article was truthful, it injured his reputation and violated his privacy, thereby warranting erasure as it was no longer relevant. Although the CJEU did not direct the removal of the article itself which was published lawfully, it directed Google to remove links to the webpage containing personal information on any of the four conditions, such as where information was i)inadequate, ii)irrelevant, iii)no longer relevant, or iv)excessive in relation to the purposes of the processing at issue. This was to be applicable even to information published lawfully and that was factually correct.

The Court also recalled that

Article 17 of the GDPR lays down when a data subject can exercise the right of erasure, the obligation of data controllers to erase links to third-party websites, and the exceptions to the when the right can be exercised. This extends the “Right to Erase” to not only a right to get the information removed from the hands of the downstream data processors but also the other intermediary data consumers such as the websites. 

It may however be observed that DPDPB 2022 recognizes the Search Engines as part of the deemed consent provision under  “Public interest” .

The Court  considered the definition of Right to be Forgotten as  a derivation of part of “Internet Privacy” (or Information Privacy) related to individual autonomy rather than secrecy or intimacy. It also recalled that UK, France and US provides for the erasure of conviction records subject to the fulfilment of certain conditions. This is more a part of the “Right to rehabilitation” and is to be provided by data protection legislation.

This observation is relevant from the context that PDPB 2019 provided that Right to Forget is subject to Judicial Review at the Adjudication level and not an obligation of the Data Fiduciary. In such cases the conditions if necessary on granting such rights could be reviewed by the authority other than the data fiduciary.

The Right to forget is considered as subject to freedom of speech and expression, public interest in the area of public health, archiving for public interest etc. The ‘right to delisting’ and ‘right to oblivion’ are facets of the right to be forgotten in the digital context. The ‘right to oblivion’ is considered as a right which allows individuals to demand the deletion of personal information collected by information society services.

The Court then said

“The interpretation of the extent to which this right to be forgotten will be applicable in India, is an important consideration in determining the liability of the different stakeholders, actors, publishers etc. and the extent to which this right will be available in different judicial proceedings. Whether the right is available on current as well as future claims is a question to be answered by us in the context of the different factual matrices before us.” This right to be forgotten is predicated on the past, as is evident from its nomenclature which includes the term “forgotten”. Therefore, it can only apply retrospectively, on information that has already been disclosed, rather than being claimed to mask information ex-ante.”

The Court also remarked that

In the European context, the right to erasure is considered as the right to be forgotten. However, in the Indian context, we are looking at these concepts by relating them to fundamental rights.
We may have to distinguish this right on broader aspects. We have already observed that the right to be forgotten is predicated on the past. The right to erasure does not depend upon the passage of time or any period. Erasure means to delete. In the Indian scenario, these rights rest on fundamental rights not like in Europe, where it is based on European directives and more or less a regulatory mechanism exists related to data transmission or dissemination of personal information.

Therefore, the right to erasure cannot be understood in the same manner, as we refer to the right to be forgotten.

The right to be forgotten can be claimed to erase memory to move forward in life with dignity. Whereas, when the information is incorrect or irrelevant the right to erasure can be claimed.

This is an excellent clarification which removes the doubts in the minds of many data protection professionals. We hope this concept will be upheld by the Supreme Court also at some times in future.

It has been our contention that DPDPB 2022 has dropped Right to Forget but retained Right to Erasure. This clarification will help us distinguish between the two in terms of compliance. (Please refer to our earlier article where we elaborated this) .

The Court further clarified

In a given case,  a party, if implicated in a criminal case is later, on investigation found to be innocent and has no connection with the crime involved, such a party may be permitted to invoke the right to erasure immediately to delete all details published online. In a claim based on the right to be forgotten, what is to be considered is the interest of a party to erase memory related to events in the past and to build a future with sincerity and good deeds and move forward in life.

The Court also said

The mere extension of an Open Court system in a digital space cannot itself be called violative of privacy rights, in the absence of any law laid down in this regard by the Parliament. Law has already recognised the Open Court system…

The right to privacy is not invaded by any publication made in a court of justice, in legislative bodies, or the committees of those bodies; in municipal assemblies, or the committees of such assemblies, or practically by any communication. made in any other public body, municipal or parochial, or in any body quasi public, like the large voluntary associations formed for almost every purpose of benevolence, business, or other general interest; and (at least in many jurisdictions) reports of any such proceedings would in some measure be accorded a like privilege. Nor would the rule prohibit any publication made by one in the discharge of some public or private duty, whether legal or moral, or in conduct of one’s own affairs, in matters where his own interest is concerned.

Individual privacy rights must yield to the larger public interest in the absence of any legislation.

The Court has limitations in balancing interests affecting a class of individuals and that of public interest. This exercise has to be done by the Legislature. The Court, however, may address the fundamental rights claimed by individuals which might not have a bearing on the collective goal. The Court cannot assume the role of the legislature to address a class and command the law.

If the Court attempts to carry out such an exercise on a notion of upholding fundamental rights, it would in essence be encroaching upon the competency of the legislature to make laws. However, nothing prevents the Court from adjudicating individual grievances and balancing such individual grievances against public interest as referable under Section 8(1)(j) of the Right To Information Act, 2005 if such individual rights have reasons to depart.

The Court also recalled the Madras High Court decision Karthick Theodre v. Registrar General, and Others [2021 SCC Online Mad 2755] where it had been stated

There must be a proper policy formulated in this regard by means of specific rules. In other words, some basic criteria or parameters must be fixed, failing which, such an exercise will lead to utter confusion…..This Court honestly feels that our criminal justice system is yet to reach such standards where courts can venture to pass orders for redaction of name of an accused person on certain objective criteria prescribed by rules or regulations It will be more appropriate to await the  enactment of the Data Protection Act and Rules thereunder, which may provide an objective criterion while dealing with the plea of redaction of names of accused persons who are acquitted from criminal proceedings. 

We are, therefore, of the view that the Court cannot prevent the dissemination of case details in the public domain citing the privacy of individual litigants.

The Court also recalled that

The Hon’ble Supreme Court in its judgment in R. Rajagopal alias R.R. Gopal And Another v. State of T.N. And Others [(1994) 6 SCC 632] held that the right to privacy does not extend to Court records and other public records.

The Court also recalled part of the Puttaswamy judgement stating

If we were to recognise a similar right, (Ed: Right to be forgotten as in GDPR)  it would only mean that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data/information is no longer necessary, relevant, or is incorrect and serves no legitimate interest. Such a right cannot be exercised where the information/data is necessary, for exercising the right of freedom of expression and information, for compliance with legal obligations, for the performance of a task carried out in public interest, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims. Such justifications would be valid in all cases of breach of privacy, including breaches of data privacy.

In individual cases, the Court may, after adverting to time and space, order the erasure of past records. However, nothing prevents the Legislature from bringing in Legislation recognizing the right to be forgotten to erase such records after the expiry of such period as it deems fit to fix. Further, laying down the grounds when such a right to be forgotten can be exercised is the prerogative of the Legislature. As the right to be forgotten is not an absolute right, it is crucial that the legislature enumerates the grounds when an individual can claim this right.

On the basis of the above observations the Court drew a distinction of “Present” and “Past Records” and the right to be forgotten can be considered only in respect of “Past Records”, By “Past Records” the Court perhaps meant after a criminal has served the sentence.

The Court went on to state

the right to be forgotten can be claimed as a right to erase past memory. The public records relating to the petitioners who were either accused or parties to the criminal proceedings cannot be erased forever. The digital space is a dynamic space allowing vibrant data to be refreshed without the constraints of time and space. The boundaries of privacy have no limitations in the digital space.

In the real world, humans have limitations created by space and time. In the normal course of human conduct, time will erase memory. This particular problem in a digital space of allowing information to remain forever would certainly affect the right claimed as a right to be forgotten. The internet has unlimited capacity to remember. The Court cannot generally balance the interest claimed by the individuals and the information available in the digital domain for eternity.

we are of the opinion that the claim to erase or redact personal information based on the right to be forgotten, in current proceedings or proceedings concluded recently is a myth and cannot be relied on to prevent the uploading of judgments in the Court Information System.

The Court hinted that Google is not a mere intermediary and  can adopt AI to create a tool and identify particular data and remove the same as necessary.

As regards India Kanoon which picks up data from public records such as the Case Information System,  Court has preferred to state

Reporting and publishing judgments are part of freedom of speech and expression and that cannot be taken away lightly without the aid of law.

Thus the Court left it to the Legislative to define Right to be forgotten and indicate the time after which certain personal data may be subjected to being sent to the oblivion.

In view of the above judgement, the responsibility is now cast on the MeitY to ensure that DPDPB 2022 provides suitable clarification regarding right to forget and how it can be distinguished from right to erasure.

Concluding Remarks

In conclusion it can be said that this judgement of honourable Mr Justice A Muhamed Mustaque and the honourable Mrs Justice Shoba Annamma Eapen assisted by Sri B G Harindranath,  as amicus Curiae has been an excellent contribution to the development of Jurisprudence on Right to Forget. It may require a detailed analysis by experts and this series of articles is only a reflection of the undersigned for further discussions.

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

[This is a continuation of our earlier article on the Kerala Judgement on Right to Forget]

The Kerala Judgement on Right to Forget had three conclusions namely

1. 1. A claim for the protection of personal information based on the right to privacy cannot co-exist in an Open Court justice system.
   2. The right to be forgotten cannot be claimed in current proceedings or in a proceedings of recent origin.
   3. 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.

For arriving at the above conclusions the Court analysed the definition of Privacy and the concept of Right to Forget as distinguished from Right to Anonymity which we have discussed in the previous article.

The Court then went on to reflect on how the Indian Court system has evolved from the days of the East India Company to today to highlight the principle of “Open Court System”. In particular the Court has considered the “Evolving Accountability and Transparency in Judicial function in the era of Digital space” and the need for independence of judiciary to be asserted with Courts being projected as democratic institutions.

The Court also underscored that since “ignorance” of law is not considered a defence in law, there is a greater need for Courts to be open about its functions and pointed out the live streaming practice that is being used in India now.

The Court significantly also alluded to the “Open Data” and said “The court cannot claim a monopoly over data available with the Judiciary…Data analytics can offer solutions to increase accountability and drive social good, welfare policy formulations etc. Withholding data would be detrimental to the public interest….the larger public interest compels the judiciary to share data with the public, stakeholders, researchers, government etc.”

The Court therefore felt that “In the larger interest, the data collected must be shared to benefit governance as well. Therefore, the Court cannot ignore the larger legal ecosystem in which administration of justice operates while deciding a matter of this nature.” and looked at the Right to Forget to be balanced with the need for judicial transparency.

In the context of redaction of litigant’s identity in Court judgement, this principle of “Open Court” is an important basic doctrine that has been highlighted by this judgement.

…to be continued

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

[This is a continuation of our earlier article on the Kerala Judgement on Right to Forget]

The Judgment of Kerala Hight Court of 22nd December 2022 in the WP (C) nos 26500/2020 & connected cases  was mainly considering the issue of “Right to Forget” and whether it is to be recognized by removal of the identity of parties from published judgements in different contexts.

The Court considered the issue from four different aspects namely Privacy, Courts as democratic institutions,  Open Data and Public Interest.

Definition of Privacy

The Court took the Definition of Privacy as a Right as the starting point for the debate on Right to be forgotten and has recorded its views. In the process, the judgement has traced the evolution of the definition of Privacy and contributed to the discussion of the “Theory of Privacy”, which is a concept of exploratory interest for us.

The judgement traces the development of Privacy thus:

“In very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the “right to life” served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. 

Later, there came a recognition of man’s spiritual nature, of his feelings and his intellect.

Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life,-the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term “property” has grown to comprise every form of possession-intangible, as well as tangible. “

In the process of this development it was recognised that writings or opinions of an individual though not in reality his private property, was considered as an inviolate personality.

The evolution of the definition of privacy then inevitably moves into the domain of technology and the special issues that the virtual space has created as if the definition of privacy is inseparable from the Technology space. It is recognized that Virtual Space has made identity of the individual digitally immortal and Digital immortality defines the continuation of an active or passive digital presence even after death.

As a result new issues of Right to Privacy has arisen and the social and ethical problems in relation to digital immorality and artificial intelligence which can identify the data stored through algorithms are the subject matter of debate of Privacy.

The current problem of “Right to Forget” is traced to this development where there is an intersection of privacy and technology which has become a challenge for the  judicial administrator.

It is through this “Digital Immortality” argument (which is a combination of data storage, capability of being indexed, searched and retrieved easily) that the “Right to Forget” discussion has been linked to “Information Privacy” in this judgement. Hence this discussion may be considered as part of the ratio decidendi and not only orbiter dicta as far as this case is considered.

The Court recognized that there are different dimensions of the information before Courts which play an integral role in encouraging fair and transparent decision making by the Courts, giving them legitimacy and contributing to the dissemination of information about the judicial process among the public.

The judgement also makes an interesting reference to the part of the Puttaswamy judgement where a distinction is sought to be made between “Privacy” and “Anonymity”.

According to Justice Chandrachud,  “Privacy involves hiding information whereas anonymity involves hiding what makes it personal”.

The Kerala Judgement points out that Privacy is about choice and this choice is sought to be extended as anonymity in court proceedings. It also underscores that “Privacy in the judicial information context is essentially related to the contents of the information in the case. Anonymity on the other hand, in the judicial information sphere, is a process of denying information to the public about the identity of the parties related to a case”.

The Court went on to add…

“Undoubtedly, we have to hold that personal information as above, of the parties in a case, has to be classified as data forming part of his or her privacy. The individual’s right to exercise control over his personal data and to be able to control his/her own life has been recognized in Justice K.S.Puttaswamy’s case (supra) in the separate judgment authored by Justice Sanjay Kishan Kaul without recognizing it as an absolute right…..

The existence of such a right does not imply that a criminal can obliterate his past, but that there are variant degrees of mistakes, small and big and it cannot be said that a person should be profiled to the nth extent for all and sundry to know.

The interplay of providing information about the parties and providing information on the contents of the cause in a Court of law requires a balancing exercise. It is exactly that exercise that has to be considered by this Court in these writ petitions in the absence of any legislation.

No one has any grievance against the open, transparent court proceedings and the conduct of cases in the open justice system. The problem for them is allowing their personal and private information to remain permanently in the digital public space, invading their right to privacy and right to forget the past. The task for us, therefore, is to decide not only on the privacy claimed in the present but also in the future.”

The Learnings to be taken note of

Thus it can be observed that the Court has flagged the “Data Storage and Data Retrieval” as the Privacy Risks than the data itself.

It is this aspect that we need to consider the “Right to Erase” and “Right to Forget” as two different concepts in DPDPB 2022. When data is made retrievable by public which is essentially related to “Disclosure” of personal data, the need for recognizing the risk of unfair privacy risk arises.

At the same time, ” Right to Forget” cannot be considered as the “Right to become anonymous” and hence it is to be considered as a limited right to prevent free disclosures.

“Right to Erase” on the other hand is related to the purpose oriented collection and use principle and requires that once the purpose is completed, the personal information should be stopped from being processed. This does not mean that the data has to be “Anonymized” or “Purged irretrievably”.

The Data Fiduciary can retain the purpose-expired data and such data can be retrieved and disclosed in certain circumstances such as there is a request for legitimate purpose.

When data has been archived as purpose-expired, it is debatable if the “Disclosure” needs to be blocked automatically for search and retrieval since there may be a public interest in the information with or without identity.

If however “Right to forget” is recognized and the data principal has placed his “request for right to forget”, then it may be appropriate to block automated disclosure.

Even in such cases, since “Right to Forget” is not “Right to Anonymity”,  it may be in order to exempt the restriction to the disclosure to law enforcement agencies or on orders of Court or in Public interest.

This alters the fundamental nature of our understanding of the “Right to Forget” and we have to thank the Kerala Judgement for this clarification.

The principle this establishes is “Right to Forget is not Right to anonymity and the identity can be archived securely in the public interest”.

For example, even when a Court redacts the names of the parties from the copy of the judgement which is published in a data store which is available for Google or Indiakanoon.com to index, within the records of the Court, the Registrar should be able to recognize the parties if required. If the Data Custodian identifies any “Public Interest” in making a voluntary disclosure of the information, there may be fiduciary duty for him to recognize and act accordingly.

For example even in a matrimonial case if the names of parties are held confidential and if there is an instance where one of the parties is a habitual offender and other similar disputes arise indicating the possibility of a criminal intention, then the data custodian may have to consider release of the data to public… may be with the permission of a Court.

Similarly in the Private Sector, if the personal data is held confidential and an incident comes to the knowledge of the company in the public space where there is a link to the data then there may be fiduciary duty  for the data fiduciary to voluntarily submit the data to the relevant authorities even though they are at that time classified as “Archived under Right to Forget Request”.

This disclosure of purpose-expired or Right to forget data in the case of deceased data principals where there may be a legitimate interest of the legal heirs (where there is no nomination) needs to be specifically addressed. Also whether Right to forget data is part of the nominee’s right also remains in need of further debate.

(These views of Naavi are subject to challenge and debate)

(… to be continued)

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

[This is a continuation of our earlier article on the Kerala Judgement on Right to Forget]

The essential part of the legal point considered by the bench in this case was “Whether in certain cases such as the matrimonial disputes, a party to that proceedings can seek an order to mask his/her name and address and that of the party respondent(s) in the cause title of the judgment and also his/her name and that of the party respondent(s) in the body of the judgment, in order to protect his/her right to privacy, described as the ‘right to be let alone’.

Did Puttawaamy Judgement rule on Right to Forget?

In some of the underlying judgements referred to in this order an argument had been raised that in the Puttaswamy Judgement (Justice K.S.Puttaswamy (Retd) and another v. Union of India and Others [(2017) 10 SCC 1]), it is held that “Right to Privacy” includes the “Right to be forgotten” and hence the petitioner is entitled to the protection of his fundamental right to privacy and has a right to erase contents that are unnecessary, irrelevant, inadequate or no longer relevant.

This contention also requires to be looked at from the point of view of whether Puttaswamy judgement has any precendence value in respect of the “Right to be forgotten being part of the Right to Privacy” since this was not part of the order. Hence whether this is part of the “Ratio Decidendi” or not remains a debatable issue. (PS: Refer this article for more on Article 141 operation).

It is an admitted principle that “Orbiter Dicta” does not have the force of precedence under Article 141 and hence it is important to understand in Puttaswamy judgement what is the ratio decidendi and what is orbiter dicta.

Ratio-Decidendi’ is the determining point which becomes the base for a judgement. On the other hand   obiter-dictum’ connotes a judge’s expression of opinion uttered in court or giving judgement, but not essential to the decision and therefore without binding authority.

The obiter dictum may be termed as a casual remark of the court while deciding the actual issues, which is considered as beyond the ambit of the operative part of the judgement.

In the Puttaswamy judgement, “Whether Right to Forget is part of Right to Privacy” cannot be considered as “Ratio decidendi”  while in the subject Kerala Judgement it is the main issue that was considered and adjudicated. Hence this point is ratio decidendi for this case and not for Puttaswamy case.

…To Be Continued

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

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

Way back in March 2015, the Supreme Court in its judgement said that  Section 66A of ITA 2000/8 as unconstitutional because it curtails Freedom of Speech.  However, the Government had not passed any amendment of law to remove the section. Subsequently, on several instances, some Courts and Police continued to use Section 66A ignoring the Supreme Court observations by ignorance or otherwise.

Now in 2022, Government seems to have decided to formally pass an amendment to remove the Section from ITA 2000/8. Along with it, several other sections of ITA 2000 and many other laws have also been amended to remove select portions with an intention to de-criminalize certain aspects of law considered as minor offences.

For this purpose, the Government has introduced a bill titled Jan Viswas (Amendments of Provisions) Bill 2022

About 42 laws have been amended in this Bill including ITA 2000, Trademark Act, Copyright act, Patent Act, PMLA, Motor Vehicles Act, Payment and Settlements Act etc.

In particular, the following changes have been made in ITA 2000.

(A) In section 2, in sub-section (1), in clause (e), for the long line, the following shall be substituted, namely:—

“the State Government, and in any other case—
(I) relating to relevant provision, or a computer resource, which is controlled by the respective Ministry or Department of the Central Government, such Ministry or Department; or
(II) not covered under sub-clause (I), the Central Government;”.

(B) In section 33, in sub-section (2), for the words “punished with imprisonment which may extend up to six months or a fine which may extend up to ten thousand rupees or with both”, the words “liable to pay penalty which may extend to five lakh rupees” shall be substituted.

(C) In section 44,—

(i) in clause (a), for the words “one lakh and fifty thousand”, the words “fifteen lakh” shall be substituted;
(ii) in clause (b), for the words “five thousand”, the words “fifty thousand” shall be substituted;
(iii) in clause (c), for the words “ten thousand”, the words “one lakh” shall be substituted.

(D) In section 45, for the words “compensation not exceeding twenty-five thousand rupees to the person affected by such contravention or a penalty not exceeding twenty-five thousand rupees”, the following shall be substituted, namely:—
“penalty not exceeding one lakh rupees, in addition to compensation to the person affected by such contravention not exceeding—
(a) ten lakh rupees, by an intermediary, company or body corporate; or
(b) one lakh rupees, by any other person.”.

(E) In section 46, in sub-section (1), for the words “under this Chapter”, the words “under this Act” shall be substituted.

(F) Section 66A shall be omitted.

(G) In section 67C, in sub-section (2), for the words “punished with an imprisonment for a term which may extend to three years and also be liable to fine”, the words “liable to pay penalty which may extend to twenty-five lakh rupees”
shall be substituted.

(H) In section 68, in sub-section (2), for the words “on conviction to imprisonment for a term not exceeding two years or a fine not exceeding one lakh rupees or with both”, the words “to pay penalty which may extend to twenty-five lakh
rupees” shall be substituted.

(I) In section 69B, in sub-section (4), for the words “three years and shall also be liable to fine”, the words “one year or shall be liable to fine which may extend to one crore rupees, or with both” shall be substituted.

(J) In section 70B, in sub-section (7), for the words “one lakh”, the words “one crore” shall be substituted.

(K) In section 72, for the words “punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both”, the words “liable to penalty which may extend to five lakh rupees” shall be substituted.

(L) In section 72A, for the words “punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both”, the words “liable to pay penalty which may extend to twenty-five lakh rupees” shall be substituted.

The Changes in the definition of the “Appropriate Government” under Section 2 will apply to state laws enacted under List III of the Seventh schedule of the Constitution and  delegates the responsibility in relevant circumstances to the Ministries and Departments or by default on the Central Government.

The changes are significant since apart from officially removing Section 66A, it has removed the criminal provisions in Section 33, 67C, 68, 72, 72A, and hence these sections under Chapter XI now actually belong to Chapter IX where Civil penalties are covered.

This change would also bring these sections under the powers of the Adjudicator and Section 46 has been amended to state “Under this Act instead of Under this Chapter”.

Section 33 has been amended to increase the penalty from Rs 10000/- to Rs 5 lakhs. (Regarding surrendering of license by a Certifying authority on revocation or suspension)

Section 44 which relates to Certifying Authorities, has been amended to increase the penalties

from Rs 1.5 lakhs to Rs Rs 15 lakhs under clause (a), (not furnishing document  to CCA),  from Rs 5000/- to Rs 50,000/- under clause (b) (not filing returns) and

from Rs 10,000 to Rs one lakh under clause (c). (not maintaining books of account)

Section 45 in which residual penalty of Rs 25000/- had been provided has been modified to increase the penalty to Rs 1 lakh in addition to compensation to the person affected to the extent of Rs 10 lakhs by an Intermediary, Company or a Body Corporate or Rs 1 lakh in other cases.

It has reduced the imprisonment under Section 69A from 3 years to one year making it non cognizable and bailable

The fine under Section 70B is raised to Rs 1 crore from Rs 1 lakh.

Penalty under section 67C is increased to Rs 25 lakhs.

Penalty under Section 68 is increased to Rs 25 lakhs

Penalty under Section 69B is increased to Rs 1 crore

Penalty under Section 72 is increased to Rs 5 lakhs

Penalty under Section 72A is increased to Rs 25 lakhs.

The Bill is presented in the Parliament and is due to be passed. The passage of the Bill is likely to significantly improve the Ease of Doing Business index of the country also. At the same time, the MeitY is also working on a comprehensive modification of ITA 2000 by replacing it with a new Act called Digital India Act.

(P.S: The above changes have been incorporated in the copy of ITA 2000 in several sections of this website and www.ita2008.in )

Naavi

Also Read:

NDTV.com

For easy reference the affected sections of ITA 2000/8 are available here: