The Kerala High Court this week continued hearing a batch of petitions seeking the enforcement of the ‘right to be forgotten’ and consequent removal of identifiable information from judgments or orders posted on various online portals and on the High Court website.
A dividing bench made up of Judge A. Muhamed Mustaque and Judge Shoba Annamma Eapen heard the case of a dentist who is aggrieved by the appearance of his name on the Google search engine and the reflection of a previous case in which he was involved. It has been alleged that the petitioner’s second marriage, his sister’s marriage and several other personal difficulties were due to the publication of the case against him.
The panel observed that the very aspect of judicial independence provides for access to information. So she asked how it could be denied to the public.
His solicitor, Barrister Andrew, argued that there was no qualms about the High Court website itself displaying the judgment, and that anyone wishing to search and find a particular judgment could simply visit the Court’s website to do so. However, the grievance relates to non-state private media outlets such as IndianKanoon uploading these details, extracting the full text of the judgment from the High Court website. He argued that there are no rules governing these activities.
Judge Mustaque went on to point out that some cases, because of the parties involved, attract more public attention than others. He therefore asked Andrew whether it would be appropriate to allow only the judgments of cases concerning certain popular figures to be available in the public domain, and not those of others.
The lawyer replied that there should be a proper procedural rule governing the same, and that even under Article 21 this was of the utmost importance. He emphasized that privacy would not be lost just because the individual is in a public space and therefore there should be a procedure/mechanism by which public documents could exit and reach a private actor such as ‘Indian Kanoon.
“Tech-enabled journalism is now more than ever“, quipped the Council while emphasizing that this meant “an unprecedented need to regulate the extent to which this information is stored in the public domain“.
In his arguments for Google LLC, Senior Attorney Sajan Poovayya argued that once material is placed in the public domain, i.e. first publication (via the High Court website), there is an inherent constitutional right for that material to be available for assimilation, and people need to have access to it. Thus, he argued that there can be no order directing an Internet intermediary to remove content from the Internet, especially outside the reasonable restrictions provisions under Article 19(2).
Poovayya argued that the right to be forgotten cannot be used as a tool to “erase history”. He argued that the said right is a small facet of the “confidentiality of information” which is an integral part of the right to privacy. Therefore, the right to be forgotten, wherever asserted, only exists in the world of informational privacy because outside of it there is no concept of a right to be forgotten. .
He further argued that the right to privacy cannot be used as a “preventive weapon” to prevent the release of information into the public domain. He argued that in our constitutional framework, freedom of expression under s. ) of the Constitution.
Poovayya argued that in sensitive cases where it is essential to hide the identity of the parties, the law prescribes a legal obligation. For example, article 327 CrPC authorizes “in camera” proceedings; Article 23 of the POCSO law prohibits the media from disclosing the identity of a child victim. He conceded that in these cases the right to information does not trump the right to privacy. However, he added that with the exception of these specific statutory prohibitions, in all other cases the right to information is pervasive and the right to privacy cannot be extended without hindrance. To support his assertions, the lawyer referred to the decisions of the Apex Court in Judge KS Puttaswamy and Shreya Singhal case.
Finally, Poovayya argued that in today’s world of third-stage web development and artificial intelligence, most search engines and internet intermediaries have a single global platform, and in such a context, when the intermediary operates a single platform for the whole world, it becomes difficult for the intermediary to determine when it is in compliance with all the laws and when there is a violation – because a jurisdiction may allow it, and the same may be prohibited in another.
Lawyer Kala T. Gopi appearing for another petitioner, accused of stalking a lady, argued that although the case against him had been dismissed, details of the incident could still be found on Google.
“The fact that the judgment itself falls into the public domain is false”pleaded the lawyer.
The lawyer further argued that the right to privacy also contemplates the right to control the dissemination of information and that it was important for the individual to know the extent of information published about them in the area. audience.
The case was released for a rehearing on October 6, 2022.
Case title: Virginia Shylu v. Indian Union and other related affairs