Kerala High Court on Thursday delivered a judgment of seminal importance where it clarified that the right to be forgotten was not an absolute right and could be claimed in certain cases only. "Individual privacy rights must yield to the larger public interest in the absence of any legislation," it added.
The high court ruled that the right to be forgotten can be claimed to erase past records, but conditions apply.
"The Court has recognised a limited right to be forgotten in matrimonial or family law matters but held that such a right cannot be claimed in criminal matters, or in ongoing cases. This is important because a complex and nuanced right, such as the right to be forgotten, must be balanced carefully with the public's right of information and the right of access to knowledge," advocate Tanmay Singh told BOOM.
In a detailed judgment where it sought to balance the right to be forgotten, the high court said that while it could decide on individual cases, it was not competent to lay down legal norms for a class. The legislature alone was competent to lay down the law and carve out exceptions to the claims of such a right to be forgotten, the high court said.
The high court ruled that persons involved in criminal cases could not seek the right to be forgotten, but those cases arising out of family or matrimonial cases from family courts could seek the right to prevent their details from going public.
The high court's judgment came on a batch of 10 pleas where individuals involved in criminal or matrimonial cases sought to erase their personal details from digital records.
Right to be forgotten applies to family & matrimonial cases, not criminal cases
The high court observed that the right to be forgotten could be claimed to erase past records only. Criminal cases were considered as "recent origin" and such claims for the "protection of personal information based on the right to privacy cannot co-exist in an Open Court justice system," the division bench observed.
"The right to be forgotten can be claimed as a right to erase past memory. The public records relating to the petitioners who were either accused or parties to the criminal proceedings cannot be erased forever. The digital space is a dynamic space allowing vibrant data to be refreshed without the constraints of time and space, the high court said.
The high court pointed out that there were several laws that accorded individuals privacy in matrimonial, family disputes, custody, and adoption which showed that the legislature did not contemplate the principle of open justice in such matters. Thus, the high court said persons with matters arising from Family Court jurisdiction and other cases where the law does not recognise the Open Court system, could claim the right to have their details withheld from publication.
In such cases, the high court directed the court's registry from publishing personal information at the insistence of parties to such litigation.
"The Kerala High Court's judgment was not about the right to be forgotten in its broadest, but rather on the narrow point of how a right to be forgotten would interact with or impact publicly available court records," advocate Tanmay Singh told BOOM. Singh is associated with advocacy group Internet Freedom Foundation (IFF) which provided legal assistance to Indian Kanoon – a database that publishes judicial orders and judgments.
Giving context to the importance of the judgment, Singh said, "Court records, being public documents, are maintained in accordance with the principles of open courts, and the High Court held that a right to be forgotten in absolute terms would be inconsistent with these principles."
Impact of technology gave rise to problems with Right to Privacy
The high court observed that the impact of technology in our lives has resulted in problems with the right to privacy. "Technology has opened the world around us and created a virtual public space. The doors to this public space have been opened forever, making the identity of the individual digitally immortal. Digital immortality defines the continuation of an active or passive digital presence even after death," the high court said.
"The online presence of data permanently raises new issues regarding the right to privacy. The social and ethical problems in relation to digital immorality and artificial intelligence which can identify the data stored through algorithms are the subject matter of debate across the globe," the division bench observed.
"This problem before the Courts in India essentially stems from this new era of technology due to the lack of legislation or regulation. The intersection of privacy and technology has become a challenge to the judicial administrator as well," the bench pointed out.
The high court said there was a subtle distinction between privacy and anonymity in the context of court proceedings. "Privacy is about choice. This choice is sought to be extended as anonymity in Court proceedings... Anonymity on the other hand, in the judicial information sphere, is a process of denying information to the public about the identity of the parties related to a case, the high court said.
"No one has any grievance against the open, transparent court proceedings and the conduct of cases in the open justice system. The problem for them is allowing their personal and private information to remain permanently in the digital public space, invading their right to privacy and right to forget the past," the Kerala high court added.
Relying on a Supreme Court judgment that held that publication based on public records cannot be objected to on the ground of the right to privacy, Kerala high court said: "The judicial function is a public function and the records are treated as public records. Every litigant approaches the Court knowing fully well that the details of the case and the details of the party would form part of the public records."