Kerala HC: Important Judgement On The Right To Be Forgotten
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack
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By Sunil Garodia
First publised on 2022-12-27 07:37:22
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Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack
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Deciding on a bunch of petitions on the vexed issue of the right to be forgotten, in an important decision, a division bench of Kerala High Court made some pertinent observations and issued some much-needed directions in the matter. The bench of Justice A Muhamed Mustaque and Justice Shoba Ennamma Eapen took the view that deciding on the kind of relief to be given to citizens under the right to be forgotten (which the court opined is not an absolute right) is the prerogative of the legislature but at the same time it said that in the absence of such a law, courts will have to decide the matter on a case-to-case basis and if they think fit, allow parties to invoke the right to be forgotten to de-index and get their personal information removed from search engines in such cases.
The court also said that it would amount to violation of privacy if the case records, although they are public documents, remained online forever. However, it also ruled that asking for erasure of court records published online for recent cases cannot be entertained by courts. It said that "the 'right to be forgotten' is contextually related to the past, and cannot be claimed as a 'right in presentium'," and claiming that would be an affront to the principles of open justice and larger public interest. Hence, it said that citizens cannot claim relief under the right to be forgotten and ask for prevention of uploading of judgments in the Court Information System.
The court also ruled that in certain cases like family disputes, matrimonial disputes, child custody matters and invoking the writ jurisdiction of the courts, the petitioner can be granted relief by masking the personal details of the parties. The bench, therefore, ordered that 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 did not want it to be published. It also directed that the court should have a grievance redressal mechanism on the administrative side to look into the complaints of citizens in this regard.
The court however also ruled that since court documents and judgments are public record, it cannot prevent news, legal and other websites from publishing or reporting on judgments as that would violate freedom of expression. The court said that "the judgments forming part of the Court records are public documents as referable under Section 74 of the Indian Evidence Act. There cannot be any dispute in regard to publishing the contents of the judgment even if such judgments are ordered to be masked in regard to the details of the parties to protect their identity." It further said that "reporting and publishing judgments are part of freedom of speech and expression and that cannot be taken away lightly without the aid of law." It also ruled that reproduction for judicial reporting, or reproduction or publication of judgments are not infringements of copyright and do not violate the provisions of the Copyright Act, 1957.
Parliament must enact a law to prescribe the relief to be granted to citizens under the right to be forgotten. Since, as the Kerala HC said, it is not an absolute right, grey areas will always remain if courts decide matters on case-to-case basis in the absence of a specific law on the subject. A specific law detailing the kind of relief citizens can avail in such matters and a binding direction to search engines to erase such data on an application by aggrieved citizens will go a long way in solving matters.
