The Kerala High Court said on Thursday that in the absence of legislation, the court may have to recognize the right and order the removal of such online content on a case-by-case basis. The court stated that only the law is competent to specify grounds for asserting a right to be forgotten and carve out limitations to such claims.
Due to the privacy of individual plaintiffs, the division bench of Justices A. Muhamed Mustaque and Shoba Annamma Eapen held that the court cannot ban the dissemination of case information in the public domain.
The Court may, in specific circumstances, order the deletion of records after providing adequate notice. Nothing, however, stops the Legislature from passing legislation recognizing the right to be forgotten, which would allow it to decide what period should be used to remove such information once it has passed. The Legislature also has the authority to specify the conditions under which a right to be forgotten may be exercised. The legislation must list the reasons under which a person may assert the right to be forgotten because it is not an absolute right "The Court made a note.
Regarding the posting of case information on court websites, it was noted that while the judiciary's strategy to assist litigants in learning about their case in an easily accessible fashion is a commendable service to them, it has its drawbacks because they are unaware that such material will be posted.
Right be forgotten challenges
"While we rejected the privacy and right to be forgotten challenges, this does not mean that the judiciary would have complete control over the actions taken by a litigant who has come to the Court in pursuit of justice. The litigant must be made aware that court decisions are available online "I made a mental note.
Therefore, it ruled that it would be preferable for the High Court to take into account the creation of a grievance redressal mechanism and appoint an officer to handle complaints in this respect on the administrative side.
Publication of judgments
The court noted that the right of a party based on the right to be forgotten may be violated by the publication of judgments online and allowing them to remain online indefinitely.
"If the court's judgements were allowed to be published online indefinitely, the parties' rights would be violated. Determining the moment or conditions in which a party may exercise the aforementioned right has been challenging due to the lack of law to address this issue. based on the court.
The court acknowledged that judgments are public records and that making them accessible to the public via an online search cannot be faulted, but it also stated that Google is not just a passive conduit and can develop a tool, identify specific data, and remove it.
Right to be forgotten
The Court ruled on a group of petitions after receiving a referral from Justice Anil K. Narendran in the case of XXX v. Union of India on March 15, 2021, in which the issue of the right to be forgotten was highlighted.
The court provided answers to the following inquiries.
Criminal Records And The Right To Be Forgotten
The court ruled that public records of the petitioners, who were either accused or parties in criminal proceedings, could not be permanently erased.
"Memory is wiped out by time in the usual course of human behaviour. The question of allowing content to remain online indefinitely would undermine the right to be forgotten. The internet is capable of remembering anything. In general, the Court cannot balance the interests asserted by persons and the material available in the digital domain for all eternity "It was also added.
However, the bench stated that after analyzing the criteria relevant to such cases, courts would be allowed to make an opinion after considering the attending circumstances of a given case to order the removal of personal data or deletion of such data from digital space.
Matrimonial, Family, and Child Custody Issues
The court stated that in instances involving family conflicts, marriage disputes, child custody, and using this Court's writ jurisdiction If the party/ies so want, the Court shall not reveal details about the parties to identify the cause before the Court.
"We believe that in such cases, the Registry should, at the request of the parties, mask the names and data of the parties, in recognition of the right to privacy surrounding marital and related problems," the statement continued.
If the parties to the action persist, the bench ordered that the Registry of the Court not publish personal information of the parties or allow any form of publishing containing the identities of the parties on the Court's website or any other information system that the Court maintains.
According to the order, the High Court Registry must post privacy notices in both English and vernacular languages on its website.
Judgments Published in Indian Kanoon and Other Online Law Journals
According to the Copyright Act of 1957, replication for judicial reporting, as well as reproduction or publication of judgments, are not violations of copyright.
"The judgements in the Court records are public papers, according to Section 74 of the Indian Evidence Act. There is no doubt that the substance of the judgement should be made public, even if such judgements are ordered to be concealed to protect the parties' identities." According to the jury.
The court held, observing that the courtroom is open to everybody, that:
"Decisions on reporting and publishing are part of free expression and should not be made lightly without the support of the law."
Courts' Role in the Absence of Legislation
While the court stated that a claim for the protection of personal information based on the right to privacy cannot coexist in an Open Court justice system, it did state that depending on the facts and circumstances of the case, as well as the duration involved in a crime or any other litigation, a party may invoke the above rights to de-index and remove the party's personal information from search engines.
"The Court is also entitled to use principles connected to the right to erasure in suitable instances to allow a party to erase and remove personal data that is public online," it added.
Current or recent proceedings
The court stated that claiming the right to be forgotten in ongoing proceedings would be a violation of the norm of transparent justice and the greater public interest.
"The 'right to be forgotten' is contextually tied to the past and cannot be claimed as a 'right in presentium,'" the judgment said.
The court stated that it cannot issue a declaration in the current proceedings admitting the right to be forgotten to wipe data for the present and future.
"As a result, we believe that the claim to erase or redact personal information in current or recently completed procedures based on the right to be forgotten is a fallacy and cannot be relied on to prevent verdicts from being uploaded in the Court Information System," it said.
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