RIGHT TO BE FORGOTTEN – Kerela HC allows deletion of personal identities in matrimonial matters & in-camera trials

The Kerala High Court held that the personal information of the parties may not be published on the High Court website in matrimonial cases, if the parties in those cases makes such a request.

Petitions filed in the High Court sought the removal of identifiable information from judgements and offers published on various search engines and the High Court Website, on the grounds that the same amounted to an infringement of the parties Right to Privacy and Right to be Forgotten.

The Contentions given during the proceedings:

During the proceedings, Advocate B G Harindranath, the counsel appearing for the High Court of Kerala submitted that the right to be forgotten is not absolute in nature and that it has to be balanced with the competing interest of the people’s right to know. 

The counsel added that merely because a person is acquitted means that the prosecution failed to meet the criteria of proving the person’s guilt beyond reasonable doubt in a criminal matter; such a person does not get an indefensible right to get his name erased from the Court recurs as there is no such right available to a person involved in a criminal case who stood trial to get his name erased from the record.

Advocate Babu Paul submitted that with regards to the matrimonial matter, there is already an office memorandum issued by the High Court, so there can’t be any doubt in that regard. He submitted that any order of the Court is a public document as per section 74 of the Evidence Act, and hence there arises a conflict between the Evidence Act and the Right to Privacy.

Advocate Santhosh Mathew the counsel appearing on behalf of Indian Kanoon contended that , in the Writ Petition, they’ve sought mandamus directing the website to remove judgements, which is not maintainable as Indian Kanoon is not carrying a public duty. Further, reproduction of courts order cannot form a basis for an action for right to privacy as these orders fall under the category of public documents under section 74 of the Evidence Act.

The case of Karthick Theodre v. Registrar Genera was referred and it was contended that “Unless the case falls within the ambit of the exceptions, the general principle must govern. No judgement of any Court has been cited to show that the prerogative power of the Court under Article 226 extends to alteration of its own records…Court cannot undertake the exercise of issuing directions to recognize a right to be forgotten when no judicially manageable standards exist in the first place and in the absence of statutory backing.”

The counsel appearing for Google Inc., Advocate Andrew stated that there is no qualms regarding High Court website itself displaying the judgment, rather, the grievance is with respect to non-state media platforms like Indian Kanoon who upload such details by extracting the whole text relating to judgements, from the High Court website, and there are no rules governing the same.

Senior Advocate Sajan Poovayya in his arguments for Google LLC. stated that once a material is put in public domain, there is an inherent constitutional right that such materials are available for assimilation, and people must have to access it.  He stated that the right to be forgotten cannot be used as a tool to “erase history”. Therefore, the right to be forgotten, wherever it is asserted, is only in the informational privacy world because outside of it, there is no concept of it, there is no concept of the right to be forgotten.

Further, right to privacy cannot be used as a “preemptive weapon” to prevent the dissemination of information in public domain and he also submitted that in sensitive cases where it is essential to mask identity of parties, law prescribes statutory duty.

The Counsel pointed out that the case herein was whether a particular information as such could be effaced from the public domain entirely.

The counsel empazised that in Virginia Shylu v. Union of India and Others where the question was whether Google would be liable for showing a search result when someone seeks to obtain information about her in terms of a court case, since it had already been made available on the Court website, as well as has been reported by other media. The Counsel in this light added that even if such other media houses could be held liable – though quickly adding that in this case they certainly were not so liable, Google would still would not be held liable, provided the provisions of Sections 2(a), 2(b) and 2(c) of the Rules are followed. He also submitted that Rule 3 adds statutory flavor to the Common Law Test of Due Diligence, as well.

He further added that the right to be forgotten cannot be elevated as the third party also has a right to receive, comment, search and research any such information which has been made available in public domain.

Advocate Kala T. Gopi appearing for another petitioner who was charged with stalking a lady contended that even though the case against him was quashed, the details regarding the incident could still be found on Google. “The fact that the judgement comes out in public domain is in itself wrong”, the counsel argued.

The Decision:

The court held the opinion that the claim for protection of personal information based on right to privacy cannot exist in an open court justice system,  however,  the court permitted masking of personal information and identities in matrimonial cases and in cases where law does not permit an open court justice system (rape and other sexual offence where camera trial is to be held).

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen, stated that “In family and matrimonial cases arising in family court and jurisdictions otherwise, and also in other cases where the law does not recognize 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 identities of parties in the website or any other information system maintained by the Court if the parties to such litigations so insist.”

Though the “right to be forgotten” cannot coexist in an open court justice system, the Bench nevertheless opined that, the court may having regard to the facts and circumstances of the case, and duration involved in relation to crime or any other litigation, permit the party to invoke the above right, and remove the personal information of the party from search engine.

Case Title: Vysakh K.G. v. Union of India & Anr And Other Connected Cases

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