Right to be forgotten can’t be claimed in ongoing court proceedings: Kerala High Court

While it called the demand for such a right in an open court system an affront to the principle of open justice and public interest, the high court permitted the erasure of sensitive personal information of parties that may be available online.

IN a significant ruling, the Kerala High Court has held that the right to be forgotten cannot be claimed in ongoing proceedings before the court as it would be an affront to the principle of open justice and to public interest.

Explaining the contours of the right to be forgotten, Justice A. Muhamed Mustaque, who authored the judgment for a bench comprising himself and Justice Shoba Annamma Eapen, said, “The ‘right to be forgotten’ is contextually related to the past, and cannot be claimed as a ‘right in presentium’. 

The bench added that it is for the legislature to fix grounds for the invocation of such a right.

It, however, held that the court, having regard to the facts and circumstances of the case and the duration involved related to a crime or any other litigation, may permit a party to invoke the right to be forgotten 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”, the bench held.

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 European Union.

The bench overruled the right to claim privacy in the public sphere in an open court system.

“The Courtroom is open to all. The Court cannot gloss over the protection available to publishers of judgments under Article 19(1)(a) of our Constitution. Reporting and publishing judgments are part of freedom of speech and expression and that cannot be taken away lightly without the aid of law”, the bench held.

Article 145(4) of the Constitution, Section 153B of the Civil Procedure Code, 1908 and Section 327 of Code of Criminal Procedure, 1973 recognise the concept of open court.

With regard to family, matrimonial, child custody and adoption matters, the bench noted that the concerned statutes themselves intend to protect the privacy of the parties involved in such disputes.

“The protection accorded to privacy in matrimonial, family disputes, custody and adoption in a slew of legislations signifies that the open justice principle is not in contemplation of the legislature in those matters. The legislature’s wisdom to deny open Court function to the public is essentially a recognition of the protective rights of the parties in relation to their privacy”, the bench observed.

It, thus, held that in such matters, the court should not publish details of the parties to identify the cause before it if the parties desire so. It also directed that the Registry of the court not to publish personal information of the parties or not allow any form of publication containing the identity of the parties on the court’s website or on any other information system maintained by the court if the parties to such litigation so insist.

Besides, it issued directions to the registry of the high court to publish privacy notices on its website in both English and vernacular languages.

The bench was considering as many as nine petitions seeking the removal of the petitioners’ personal information and judgments from the internet. Many of such petitions were filed by persons who have had criminal proceedings against them. The bench refused to grant relief in criminal matters, but it directed Google to de-index the names and also directed the registry to ensure that the Indian law search engine, Indian Kanoon hides the personal information of the parties online in cases relating to matrimonial disputes.

In one of the cases, the petitioner approached the high court to obtain custody of a minor child. By publication of the judgment online, the identity and name of the child had been revealed. The bench, in this case, allowed the prayer and directed Google LLC to de-index the judgment. It also directed the registry to ensure that Indian Kanoon redacts the names and personal information of the parties or removes the publication of the judgment.

Google sought to argue that it neither discharges a public function nor is under the State authority. Hence, no directions could be issued against it. It also argued that the Google search engine enables parties to access information that is already available in the public domain.

Responding to the argument of Google, the high court noted that making available court judgments by the process of search engines cannot be found fault with. But the high court posed a question to Google as to whether it can be content-blind to its publications made online.

“Can they allow any prohibited nature of content to appear online? For example, paedophilic content?,” asked the high court.

The bench observed that, “An algorithm means a set of procedures used for solving a problem or performing a computation. In the era of artificial intelligence, it is quite possible for Google to identify the nature of the content and remove the same. Google is not a mere passive conduit.”

The bench said it was of the firm view that Google cannot claim itself as a mere intermediary, allowing content to appear for viewers or users on its digital platform.

“The publication of any valid records is protected by the Constitution as forming part of Article 19(1)(a), the right to freedom of speech and expression. There is no difficulty for Google during the era of advancement of [artificial intelligence] to create a tool and identify particular data and remove the same. If that is not done, it would really infringe the claim based on the right to be forgotten,” the bench held.

Click here to view the Kerala High Court’s full judgment.