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INDIA - Kerala High Court protects the right to access court records
A series of petitions before the Kerala HC sought the removal of court orders from the Indian Kanoon website by claiming the ‘right to be forgotten’. Indian Kanoon argued that ‘the right to be forgotten’ is not absolute and that it is inconsistent with the principle of open courts. The Kerala HC ruled in the favour of Indian Kanoon and struck a balance between the right to privacy and the right to freedom of information by holding that the ‘right to be forgotten’ cannot be exercised in criminal law cases and current/recent cases. Though it could be exercised on a case-to-case basis with respect to matrimonial/family cases etc.
Why should you care? The status of the right to be forgotten in relation to court records is a complex issue that has resulted in conflicting judgments from various High Courts. However, the Kerala HC’s ruling in the case of K.G. Vysakh has provided some clarity on the matter. The clarification of the law by the court will benefit Indian Kanoon, which in the exercise of its right to freedom of expression, enables thousands of people to access judicial pronouncements.
Background India Kanoon is a popular open-access search engine that was launched in 2008. Court orders from the website of the Supreme Court, High Courts, district courts and tribunals are automatically uploaded on the Indian Kanoon website. Indian Kanoon reproduces these orders verbatim, after redacting personally identifiable details of victims of sexual violence. No other modifications or edits are made to the court order. India Kanoon’s case removal policy is available here.
Several petitioners filed writ petitions before the Kerala HC, seeking the removal of their individual court records online based on a purported right to be forgotten. Of these, two were matrimonial matters and the rest were criminal matters. Indian Kanoon was impleaded as a party in the case as the petitioners sought deletion of these court records from Indian Kanoon’s database as well.
Indian Kanoon argued that a right to be forgotten cannot extend to court records. Placing reliance on the Supreme Court's ruling in R. Rajagopal v. State of Tamil Nadu, Indian Kanoon argued that court records are public documents and that a right to privacy cannot be used to prevent their publication. Further, the only circumstances in which the publication of a court order can be prevented are if the court specifically issues such an order or if there is a statutory prohibition against the publication of certain types of orders. For example, Section 228A of the Indian Penal Code prohibits the disclosure of the identities of victims of sexual violence, and Indian Kanoon removes any personally identifiable information of such victims from the court orders it publishes on its website.
Kerala HC says that ‘Right to be Forgotten’ is not absolute The HC recognised that informational privacy (i.e., the right of an individual to exercise control over their personal data) is an integral part of the right to privacy. It is noted that litigants may want to prevent the disclosure of personal information like their names or any other content.
The HC held that there needs to be a balancing exercise between the right to privacy of litigants to prevent disclosure of information and the larger public interest of judicial transparency. The HC held that “the mere extension of an Open Court system in a digital space cannot itself be called violative of privacy rights, in the absence of any law laid down in this regard by the Parliament. Law has already recognised the Open Court system”. It was also held that “right to be forgotten is not an absolute right” and that it is in the domain of the legislature to enumerate the grounds based on which a purported right to be forgotten can be availed. Cognizant of the lack of any legislative enactment, the HC held that it “cannot step into the shoes of the legislature”, but it could address individual grievances on a case-to-case basis.
After months of patiently hearing all sides, the HC gave the following directions: The right to privacy and the right to be forgotten cannot be claimed in an open court justice system. The right to be forgotten cannot be claimed in current or recent proceedings, and it is up to the legislature to determine the grounds for invoking this right. However, the court may allow a party to de-index and remove their personal information from search engines in certain circumstances on a case-to-case basis. In family and matrimonial cases and other situations where the law does not require an open court system, the court registry must not publish the personal information of the parties or allow the publication of their identities on the court's website or other information systems if the parties request it. The registry of the High Court is also required to publish privacy notices on its website in both English and vernacular languages.
This is a significant judgement that safeguards the freedom of information, which is an integral part of the right to freedom of speech and expression.
Out of the 9 petitions which were filed, relief was only granted in 2. First, in a dispute related to a passport arising out of a matrimonial dispute and second, in a child custody dispute, the name and identity of a minor child were revealed in the online publication of the judgement. Along with Indian Kanoon, Google India (Pvt) Ltd. and Google LLC were respondents in this case. Google LLC was directed by the HC to de-index personal information like name and identity in the above-mentioned cases. Since, Google LLC was directed to de-index, instead of Google India (Pvt.) Ltd., in effect the HC directed de-indexing with global effect.
by Gayatri Malhotra
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