The Right to be Forgotten

The Right to be Forgotten

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  1. The Hon’ble Kerala High Court’s judgement dated 22nd December 2022 (“Vysakh Judgement”) looks to settle the vexed issue arising due to the privacy rights asserted by individuals who wish to have their names/addresses and other personal details redacted from orders/judgments in matters relating to matrimonial disputes, criminal matters and disputes relating to custody of children, as well as orders/judgments in other matters where the anonymity happens to be protected by provisions of various statutes. The petitioners in the various writ proceedings were claiming that they had a “Right to be Forgotten”, arguing that this claimed right must be treated as a facet of the fundamental right to privacy. The Judgement discusses the need to balance an individual’s privacy rights against countervailing public interests, such as public access to information and the open justice system followed by the judiciary.
  2. The Vysakh Judgement holds that i) claims for the protection of personal information based on the right to privacy cannot co-exist in an open court justice system ii) the right to be forgotten cannot be claimed in current proceedings or in proceedings of recent origin and it is for the Legislature to fix grounds for the invocation of such a right; and iii) in cases where the law does not recognise the open court system (such as family/matrimonial cases) and if the parties to such litigation so insist, the Registry of the court shall not publish personal information of the parties or shall not allow any form of publication containing the identity of the parties on the website or on any other information system maintained by the court.
  3. Interestingly, it was also held that having regard to the facts and circumstances of the case and duration involved related to a crime or any other litigation, courts may permit a party to invoke the above rights to de-index and to remove the personal information of the party from search engines. Courts are 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 Vysakh Judgement clarifies that intermediaries cannot be held liable for re-publishing/indexing orders if they remain compliant with the requirements of Section 79 of the Information Technology Act and the related rules, while also noting that the proceedings before it did not give rise to any questions pertaining to the liability of intermediaries.
  4. In my view, the ‘exception’ permitting de-indexing perhaps contravenes the judgement of a coordinate bench of the Hon’ble Madras High Court in Karthick Theodre vs. Registrar General, Madras High Court, as well as the findings of the Apex Court in Naresh Shridhar Mirajkar vs. State of Maharashtra. The Hon’ble Madras High Court had already weighed in on this issue in Karthick Theodre vs. Registrar General, Madras High Court, where it held inter alia that the right to be forgotten cannot exist in the sphere of administration of justice, particularly in the context of court judgments. It also held that for judgments/orders that aren’t subject to statutory exceptions to the open justice rule that allow for masking/redaction of names and personal information from court orders, it will be more appropriate to await the enactment of the data protection statute and related rules which may provide objective criterion to address pleas for redaction of names of accused persons who are acquitted from criminal proceedings. However, while this judgement held that the open justice rule must prevail barring statutory exceptions, it did not provide any leeway for parties to approach courts to seek de-indexing of court orders or permit redaction of personal information from search engines. One wonders whether the distinction arises due to the court in Karthick relies upon the findings in Naresh Shridhar Mirajkar vs. State of Maharashtra [AIR1967SC1], which held that the re-publication of matters that are already published in open court cannot be precluded.
  5. Identical issues/questions have arisen in matters which are pending before the Hon’ble High Court of Delhi as well. Given the divergent views regarding the issue, it might be time for the Hon’ble Apex Court to take up the odious task of deciding how far claims based on the Right to be Forgotten and for erasure are to be entertained. Though it is arguable that the Puttaswamy judgement has already dealt with this issue (where it stated that while the Right to be Forgotten is a facet of the right to privacy, but must await statutory recognition, definition and regulation), it is yet to adjudicate upon a claim asserting this nebulous Right to be Forgotten.

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