Right To Be Forgotten Not Absolute, Must Be Balanced With Right To Know : Kerala HC Standing Counsel Tells High Court

The Kerala High Court, on September 15, heard a batch of petitions seeking the removal of identifiable information from judgments or orders published in various online portals and the High Court Website, alleging that it is a violation of the Right to Privacy and Right to be Forgotten. Division Bench consisting of Justice A Mohammed Mushtaq and Justice Sophy Thomas observed that when competing interest is involved certainly, the public interest will overtake the individual interest. It observed, When Apex Court declared it as a Fundamental Right, right to be protected, then we, an institution, are we not bound to protect it? That is where the competing interest comes in one right of a citizen to publish and the fundamental right of another citizen to be protected. When competing interests are involved, certainly, the public interest will overtake the interest of the other citizen. Publishers like LiveLaw, Bar and Bench and Indian Kanoon are protected under Article 19, but we as an institution are not protected under Article 19.When the matter was taken up for hearing, the Standing Counsel appearing for the High Court of Kerala (6th respondent), Advocate B G Harindranath, submitted that the right to be forgotten is not absolute it has to be balanced with the competing interest balancing the right to know and the right to be forgotten should be left to the Legislature and not to the Court. It was submitted that the judgment of the Karnakata High Court in the case of Vasunathan v. The Registrar General, in which the Court had allowed the prayer of masking the petitioner's name, does not reflect the correct legal position, and the petitioner does not have any right to get her name erased on the premise that she has such a right under the Constitution.It was further submitted that merely because the person is acquitted it only means that the prosecution did not meet the threshold of beyond a reasonable doubt in a criminal case; he does not get an indefensible right to get his name erased from the Court records as there is no such right available to a person involved in a criminal case who stood a trial to get his name erased from the record. Justice Mushtaq orally remarked that as far as criminal cases are concerned, it is committed against society and not just a single individual therefore, everyone has a right to know what happened to the accused. Every public is assumed to participate in the proceedings, and they have every right to know about it. Even if their criticism is not valid, it may be relevant sometimes.The Counsel then argued at length on the Right to Privacy and on the Right to be left alone, quoting scholarly articles as well as international and national cases in this regard.'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'The Standing Counsel traced the origin of the concept right to privacy to an article published by Samuel Warren and Louis Brandeis in 1890, in which it epitomized the right to privacy as an already existing common law right which embodied protections for everyone's 'inviolate personality'. He submitted that in this article, they described that the common law guarantees to everyone the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others, thereby fixing the limits of the publicity which shall be given to them. This understanding is the essence of the right to privacy. The Counsel cited a number of US Supreme Court decisions to show that the Right to Privacy has its moorings in the Fourth Amendment.Further, in a written statement filed by the 6th respondent, it was averred that Data privacy, as usually addressed, has a wide scope and includes personal, informational or organizational privacy. While it is required in the larger public interest to protect one's right to privacy, it shall also be maintained that the law is not too sensitive to these concerns; any legislation enforcing the right to privacy shall not recognize it as an absolute right, but as a right with reasonable exceptions, he submitted. "Everyone has the right to prevent unwanted invasions into his private and family life, his home and correspondence. It reflects both the individual's psychological need to preserve an intrusion-free zone of personality and family and prevent the anguish and trauma when that zone is violated. Privacy also connotes a right to be left alone. It is also important to accentuate the fact that privacy is not lost or conceded just for the reason that the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being."Furthermore, in Section 8 of the Right to Information Act...

Right To Be Forgotten Not Absolute, Must Be Balanced With Right To Know : Kerala HC Standing Counsel Tells High Court

Athira Prasad

Tags