Kerala HC: Parties can Seek Removal of Personal Information Under Right to be Forgotten

Kerala HC Law Insider

Aastha Thakur

Published on: 22 December 2022 at 17:51 IST

The Kerala High Court recently on the “right to be forgotten” has given a significant verdict. The court held that if the parties of the family and matrimonial cases are not comfortable with sharing personal information on public portal, their request will be accepted.

The bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen, rendered this view while hearing the plea seeking removal of identifiable information from judgements or orders published in various online portals and the High Court Website, on the ground that the same amounted to violation of the Right to Privacy and Right to be Forgotten.

The court remarked 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”.

The court remarked that one cannot claim for protection of personal Information in relation to the open court justice system, the Court however permitted the masking of personal identities in matrimonial cases and in cases where the law does not recognize the open court system (cases for rape and sexual offences where the trial is held in-camera).

It was opined by the learner bench that it is for the legislature to consider and take ground to for invocation of such a right. But it does not implicate that the Court can’t permit party to invoke such right, and remove the personal information of the party from search engine.

It was further added that, “Court in appropriate cases, is also entitled to invoke principles relating to right to erase personal data available online”

The counsel appearing for the HC of Kerala Advocate B G Harindranath, submitted that the right to be forgotten with reasonable restrictions and requires balance with the competing interest balancing the right to know.

The Counsel further emphasized that merely because the person is acquitted it only means that the prosecution did not meet the threshold of beyond a reasonable doubt in a criminal case; he does not get an indefensible right to get his name erased from the Court records as there is no such right available to a person involved in a criminal case who stood a trial to get his name erased from the record.

Regarding matrimonial cases and other family related matters, the counsel submits that any order given by the Court is the public document given under Section 74 of the Evidence Act, and there arises a conflict between Section 74 and the Right to Privacy.

The various counsel appearing for different law portals submitted there view against this order.

The counsel representing Indian Kanoon held that the Indian Kanoon website is performing a public duty and the plea filed is not maintainable as the reproduction of Court orders falls under the realm of Section 74 of the Indian Evidence Act.

Senior Advocate Sajan Poovayya, in its arguments states that when any judgement becomes the part of public mainstream through Court websites, then there is an inherent constitutional right that such materials are available for assimilation, and people must have access to it. Thus, he contended that there cannot be an order directing an internet intermediary to remove content from the internet, especially outside the provisions of reasonable restrictions under Article 19(2).

Further he contends that the right to privacy cannot be used as a “preemptive weapon” to prevent the dissemination of information to the public domain.

He pointed out that the crux of the issue in the present case was not whether the intermediary is or is not complying with the 2021 Rules. The counsel stated that if the intermediary does not comply with the Rules, the safe harbour protection under Section 79 of the Act would be removed, holding the intermediary liable for the information that has been published.

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

He further stressed that the right to be forgotten could not be elevated to such a status, since the third party has a right to receive, comment, search and research such information which has already been made available on the public domain.

Case Title: Virginia Shylu v. Union of India And Other Connected Cases


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