Right to be forgotten may not be an absolute right even after acquittal in cases: Kerala High Court

The Kerala High Court on Wednesday opined that the right to be forgotten may not be one that can be claimed as an absolute right especially when it comes to details of litigants which are available online on portals like Indian Kanoon. .The observation was made by a division bench of Justices A Muhamed Mustaque and Sophy Thomas while considering a batch of pleas by certain litigants seeking erasure of their personal details which were appearing on Google search and on legal resource website Indian Kanoon despite their acquittal in those cases..Justice Mustaque opined that even if a party is acquitted, information about what the case and charges were, might be required for other purposes."I don't think that the right to be forgotten can be claimed as an absolute right. Even if they are acquitted, one may need to know what the case was that was registered against them. We are living in a society where everything is connected and related to each other," he orally remarked..Some of the petitions were specifically against Google Inc. for erasing the search results, and Indian Kanoon for carrying court orders with the petitioners' personal information.But Justice Mustaque pointed out that since there currently is no data protection law in India, it may be up to the discretion of individual online portals on what information is to be made available."In the absence of data protection laws, everything is left to the discretion to the organisation," he said..Since the counsel for the petitioners sought an adjournment to place some recent judgments by other constitutional courts on record, the Court posted the matter for hearing on September 14. .The petitioners in the batch of cases before the bench were mostly involved in matrimonial and custody disputes. Some of the pleas were moved by persons who were acquitted in criminal cases.One such plea was moved by a consultant dentist who was aggrieved by the fact that a bail order published on Indian Kanoon, containing his personal details, was the first result of an internet search, despite his subsequent acquittal in the case.Describing the experience as traumatic, especially because the search result displayed his name, father’s name, address, and a wrong crime number, the petitioner stated that the same infringes upon his right to privacy.“Even if a Law Reporter has the right to publish court judgments, their right does not extend to show a summary of past criminal records in a google search," the plea stated.Suggesting that the popular judgment database could deindex the particular bail order from the search result, the petitioner sought recognition of his right to be forgotten as a facet of the right to privacy.Advocates Johnson Gomez, Sanjay Johnson, John Gomez, Sreedevi S, Adil MH, and Alint Joseph represented the petitioner..Indian Kanoon responded to the plea asserting that the right to privacy cannot be extended to protect an individual from publications based on public records, including court orders.It was contended that the petition sought to bypass legislative procedure underway to statutorily recognise the right to be forgotten.Relying on the judgments of the Supreme Court in R Rajagopal v. State of Tamil Nadu, KS Puttaswamy and Navtej Singh Johar , Indian Kanoon submitted that "the right to privacy under Article 21 cannot give rise to the claim that court records cannot be published."Referring to Clause 20 of the Personal Data Protection Bill, 2019, it was argued that the plea was premature since the legislature was actively considering the viability of recognising the right to be forgotten.Advocates Santhosh Mathew, Anil Sebastian Pulickel, and lawyers associated with Internet Freedom Foundation represented Indian Kanoon in the proceedings.Advocate Aditya Vikram Bhat represented Google LLC..Just a few weeks ago, the Central Government had moved to withdraw the Bill which was still pending in the Lok Sabha, pursuant to the new recommendations made by the Joint Committee of Parliament..The right to privacy of an accused, or the right to be forgotten, is an issue that several constitutional courts across the country have been seized of ever since the Supreme Court, in its landmark 2017 Puttaswamy judgment, had mentioned the right to be forgotten as a facet of the right to privacy.Recently, the Supreme Court had ordered the masking of the details of the petitioner and respondent in a case so that their details are not thrown up by internet search engines.A separate petition was moved before the Kerala High Court itself by rape accused seeking orders to preserve and protect his right to privacy and dignity until the conclusion of his trial in the case. The petitioner asserted that even an accused facing trial is entitled to the right to dignity and privacy which are guaranteed Articles 14, 19 and 21 of the Constitution of India..In August 2021, the Delhi High Court had issued notice on a plea moved by two businessmen seeking the removal of news articles from the internet on their past arrest and trial in a criminal case after their acquittal in the said case.The Madras High Court also had the occasion to consider the issue when a man moved the Court seeking the redaction of his name from Court judgments and orders after he was acquitted in the case.The High Court had initially opined that an accused person who is eventually acquitted of all charges is entitled to have his name redacted from court orders. However, ultimately, the judge concluded that the right to be forgotten cannot exist when it comes to judgments of the Court.The Orissa High Court had also lamented the lack of a mechanism to permanently delete information from the internet in order to safeguard the right to be forgotten. The observation was made in a bail application moved by a person who videographed intimate photographs of his sexual assault on a woman and uploaded them on Facebook.