The Kerala High Court has held that a claim for the protection of personal information based on the right to privacy cannot co-exist in an open-court justice system.
The HC said the open-court justice system is a fundamental aspect of a democratic ecosystem such as India and its mere extension in a digital space cannot itself be called violative of privacy rights, in the absence of any law laid down in this regard by Parliament.
The court was dealing with a batch of petitions raising grievances against the publication of the judgments/orders in respective cases by Indian Kanoon and other law journals putting personal information of the petitioners/respondents in the public domain which could be accessed through Google.
While stating that it caused them substantial prejudice, mental trauma and agony, the petitioners argued that digital eternity in retaining judgments in the digital domain forever is violative of the fundamental right to be forgotten.
The bench was to essentially adjudicate whether in writ petitions pertaining to family matters, a party can seek an order to mask his/her name and address in the cause title and the body of the judgement in order to protect his/her right to privacy.
The division bench of Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen held that the right to be forgotten can only apply retrospectively, on information that has already been disclosed, rather than being claimed to mask information ex-ante.
“The right to be forgotten cannot be claimed in current proceedings or in a proceedings of recent origin and it is for the Legislature to fix grounds for the invocation of such a right," the bench declared.
It stressed that the modern government will have to solve many issues pertaining to the legal ecosystem, on the assimilation of data with different stakeholders focusing on governance, welfare and the common good of the citizens.
However, the bench clarified that having regard to the facts and circumstances of the case and duration involved, the court may permit a party to invoke the right to be forgotten to de-index and to remove the personal information from internet search engines.
It added that 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.
Apart from that, the bench declared and held that in family and matrimonial cases and also in other cases where the law does not recognise the open-court system, the registry of the court shall not publish or allow to be published the personal information of the parties on the website or on any other information system maintained by the court if the parties to such litigation so insist.
While adjudicating the issue which was referred to it by a single-judge bench, the division bench remarked, “With the advancement of technology, the identity of the individual in virtual public space has become digitally immortal and in a liberal and democratic system, the Court cannot claim a monopoly over the data available with the judiciary."
The bench added that the courts have not formed any policy on open data and the larger public interest compels the judiciary to share data with the public, stakeholders, researchers, government, etc.
Regarding publication of judgments/orders, the bench said that it is a part of freedom of speech and expression. “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 HC said.
The bench has, however, directed the registrar of the high court to publish the privacy notices within two months in both English and Malayalam languages on the websites of the HC and the district judiciary.
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