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Reporting and publishing of judgments are part of freedom of speech, says Kerala HC in response to petitions seeking right to be forgotten

Kerala HC refused to restrict media houses and legal portals from publishing judgements and details of court hearings as sought by several petitioners claiming right to be forgotten

On Friday, the Kerala High Court declared that reporting and publication of Court decisions and rulings form a crucial part of freedom of speech and expression. The court said this in response to several petitions seeking to restrict media houses and legal portals from publishing judgements and details of court hearings as they contained their names or the details of their cases.

The division bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen was hearing petitions seeking enforcement of the right to be forgotten against the uploading of court orders or judgments on the internet. The bench said, “The Courtroom is open to all. The Court cannot gloss over the protection available to publishers of judgments under Article 19(1)(a) of our Constitution. Reporting and publishing judgments are part of freedom of speech and expression and that cannot be taken away lightly without the aid of the law.”

According to the Court, the identity of the judiciary based on public trust is not normally achievable without the open flow of information about judicial functioning. It was noticed that in cases where a public figure is involved, the media frequently broadcasts headlines of breaking news with minute-by-minute details of the Court proceedings, including what the judge said throughout the hearings.

“In open justice, as we discussed earlier, the Courtroom must allow the public to form opinions about its functioning. This is the foremost consideration in building public confidence,” said the bench.

The court noted that what a commoner needs to hear is not necessarily the case specifics of ‘X’ or ‘Y,’ but how their matter is determined in a court of law. “However scant curiosity may have been shown in Court proceedings, Courts cannot count on the number of people interested, to deny such information from coming into the public sphere. The sense of the public sphere must guide the Court in allowing judgments to come into the public domain,” said the bench.

The court further highlighted that Section 153-B of the CPC and Section 327 of the Cr.P.C. render courts statutorily public realms where individuals are permitted to witness proceedings and form public opinion. According to the division bench, the basic notion of having Courtrooms open to the public is to protect the open court principle, which is a crucial part of the democratic ecology.

The court further stated that the purpose of Section 74 of the Evidence Act, which makes judicial documents public records, is to provide the public access to the information contained in such records. It went on to say that in open court, every bystander has the right to monitor proceedings and report any matter that the court examines.

“The public has every right to know how a judge conducted a particular case with details of the parties, contents, etc. The digital platform only allows easy access to such information through the digital space. Nevertheless, it was available to the public in all respects in the brick-and-mortar system as well. The mere extension of an Open Court system in a digital space cannot itself be called violative of privacy rights, in the absence of any law laid down in this regard by the Parliament. Law has already recognized the Open Court system,” the Court stated on December 23.

The bench additionally stated that the Courts have no copyright rights over decisions because they are public records. According to the Copyright Act of 1957, replication for court reporting, as well as reproduction or publishing of judgments, are not infringements of copyright.

“The judgments forming part of the Court records are public documents as referable under Section 74 of the Indian Evidence Act. There cannot be any dispute regarding publishing the contents of the judgment even if such judgments are ordered to be masked regarding the details of the parties to protect their identity,” the Court observed.

It did, however, state that in the absence of legislation, the court may be forced to recognize the right to be forgotten and order the removal of such online information on a case-by-case basis. The court said that only legislature is competent to enumerate grounds for claiming the right to be forgotten and carve out exceptions to the claims of such a right.

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