Vysakh K.G. v. Union of India
In the High Court of Kerala
Before Justice A.M. Mustaque and Justice S.A. Eapen
Decided on December 22, 2022
Relevancy of the Case: Exercising the right to be forgotten for the removal of personal information in reported court judgements available on the internet
Statutes and Provisions Involved
- The Constitution of India, 1950 (Article 21, 226)
- The Indian Penal Code, 1860 (Section 354D, 376)
- The Information Technology Act, 2000 (Section 67B)
- The Protection of Children from Sexual Offences Act, 2012 (Section 15)
Relevant Facts of the Case
- This decision disposes of 9 cases dealing with removing judgements in the public domain on the grounds of the right to be forgotten.
- WP (C) 26500/2020: The police had registered a case under Section 354D of the Indian Penal Code, 1860, against the petitioner. Subsequently, the defacto complainant submitted that she did not wish to pursue the matter. The court, accordingly, passed appropriate orders.
- WP (C) 21917/2020: The concerned court acquitted the petitioner, a dentist by profession, of all the charges in 2019. However, the High Court’s order in his 2014 bail application is available on Indian Kanoon, and the same appears in Google Search results.
- WP (C) 8174/2020: The first petitioner, the mother, filed a habeas corpus petition in 2014 when the second petitioner, her daughter, was wrongfully detained. The court had ordered her release and closed the petition.
- WP (C) 6687/2017: The petitioner, an Indian resident, approached the court in WP (C) 23996/2015 to seek directions for solemnising her marriage to a US citizen under the Special Marriage Act, 1954. However, the marriage could not be solemnised due to differences between the parties.
- WP (C) 7642/2020: The petitioner, a homoeopathic doctor, and his father were named as accused persons in a criminal case. The court later quashed these proceedings in Crl. MC 4510/2018.
- WP (C) 20387/2018: In a criminal case, the petitioner had settled with the other parties and filed Crl. MC 100/2013 and 109/2013 to quash proceedings. Subsequently, their orders became available on the internet.
- WP (C) 12699/2021: The petitioner’s parents are opposite parties in WP (C) 20773/2010. This judgement reveals her and her parents’ identity.
- WP (C) 29448/2021: The court granted bail to the petitioner in BA 6482/2020 via an order dated October 16, 2020. The police had registered a case against him under Section 67B of the Information Technology Act, 2000 and Section 15 of the Protection of Children from Sexual Offences Act, 2012.
- WP (C) 2604/2021: In a minor child’s custody matter, the petitioner’s name, age, father’s name, and residential address are visible to the general public.
- In all these petitioners, the petitioners seek removal of the published judgements on Indian Kanoon and de-indexing of those search results from Google.
Prominent Arguments by the Advocates
- WP (C) 26500/2020: The petitioner’s counsel submitted that the judgment has no public importance. Also, the right to be forgotten is a part of the right to privacy.
- WP (C) 21917/2020: The petitioner’s counsel contended that the right to privacy includes this right. The petitioner has a right to seek erasure of contents that are unnecessary, irrelevant, inadequate, or no longer relevant. Additionally, the counsel relied on the Supreme Court’s judgement in the case of Justice KS Puttaswamy (Retd) & Anr v. UOI and Ors.
- WP (C) 8174/2020: The petitioner’s counsel submitted that the judgement puts the second petitioner’s identity in the public domain. As a result, this causes substantial prejudice to her.
- WP (C) 6687/2017: The petitioner’s counsel argued that the rule on the publication of court records will not violate the right to privacy and is subject to exceptions in the interest of decency. Her name appears in the cause title, which has resulted in substantial prejudice.
- WP (C) 7642/2020: The petitioner’s counsel submitted that Indian Kanoon published this judgment without the court’s permission. The counsel further contended that the regulatory authorities shall ensure that intermediaries do not infringe on an individual’s right to privacy.
- WP (C) 20387/2018: The petitioner’s counsel submitted that the publication of these judgements has infringed his right to privacy. There are no guidelines regarding the publication of details of individuals in cases involving the settlement between the parties.
- WP (C) 12699/2021: The petitioner’s counsel submitted that the publication of the judgment contravenes the Supreme Court e-Committee’s directions. These directions direct all the High Courts to refrain from uploading case-related information except case numbers and status on the internet in matrimonial matters.
- WP (C) 29448/2021: The petitioner’s counsel submitted that Indian Kanoon infringed his privacy rights.
Opinion of the Bench
- The problem of the present nature of the right to privacy has arisen as an impact of technology in our lives.
- In light of the Puttaswamy judgement, the court leaned in favour of defining privacy in relation to court data to include parties’ names and causes.
- Anonymity is the subject of privacy in a courtroom. A subtle distinction exists between anonymity and privacy in relation to the contents of judicial proceedings.
- The courts have not formed any policy on open data. However, the larger public interest compels the judiciary to share data with the public.
- This right developed as a consequence of the dignity of an individual. It aims to help individuals forget the past and live in the present. Although the EU’s Data Protection Directive of 1995 contained no express right to be forgotten, the Grand Chamber of the Court of Justice of the European Union (CJEU) held that an implied right existed in the Directive in the case of Google Spain v. AEPD.
- In the digital context, the right to delisting and the right to oblivion are two facets of this right.
- Under GDPR, Article 17 provides individuals with a right to seek erasure of their personal data if it is no longer necessary for the purpose of its collection. However, the right to erasure is the right to be forgotten in the European context.
- This right relates to the past, and a party cannot claim it as a right in presentium.
- A claim to protect personal information based on privacy cannot co-exist in an open justice system.
- A party cannot claim this right in current proceedings or proceedings of recent origin. The Legislature can fix grounds for the invocation of such a right. At the same time, a court may consider facts and circumstances to permit a party to invoke this right.
- The court’s Registry shall not publish the parties’ personal information in family and matrimonial cases. Further, the Registry shall not allow any form of publication containing the identity of the parties.
- The High Court Registry shall publish privacy notices on its website in English and vernacular languages.
- The court granted the reliefs in 9 petitions as follows:
- WP (C) 26500/2020, 21917/2020, 7642/2020, 20387/2018, and 29448/2021: These are criminal cases. Hence, the petitioners cannot invoke the right to delete past records.
- WP (C) 8174/2020: There is no reason to grant the removal of personal information in a habeas corpus petition. Therefore, the writ petition fails.
- WP (C) 6687/2017, 12699/2021, and 2604/2021: These matters fall under matrimonial and family matters. The court granted the relief sought to the petitioners. Google should de-index the names of parties from the search results. Moreover, the Registry shall ensure that the Indian Kanoon website hides the personal information of the parties online.