Privacy, Data Protection and Retention
Google Spain SL v. Agencia Española de Protección de Datos
Closed Mixed Outcome
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The Bombay High Court stressed the importance of protecting the identities and personal information of all parties from disclosure in proceedings under a law concerning the certain sexual harassment of women in the workplace. The Court ordered a set of initial guidelines for other relevant Courts (including the Registry), parties and the media to follow during any proceedings under the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013, and Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Rules, 2013. Set as a minimum standard, the Court passed a number of key orders to protect not only the plaintiffs and defendants in any case, but their witnesses too – through measures that target anonymization, access to documents, media coverage and the conduct of proceedings.
No information is available regarding the identities of the plaintiff and the defendant in this case. This is because the proceeding involves issues under the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“the POSH Act”) and Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“the POSH Rules”). As outlined in the following section, the Court found it to be “imperative” that the identities of both parties were protected from disclosure – even if such disclosure was accidental [para. 2]. However, the orders did reveal that the plaintiff had an appeal pending before the Industrial Court/ Labour Court.
Justice G S Patel delivered the judgment for the High Court of Bombay. The main issue before the Court was that there was a lack of established guidelines and protocols to protect the identities of the parties from disclosure, even accidental disclosure, during and after court proceedings under the POSH Act and the POSH Rules. The Court thus used this judgment and order to devise an initial, minimum-standard working protocol for all future court orders, hearings, and case file management in such cases.
Anonymization protocols for judgments and orders
First, the Court stipulated that several steps must be taken to anonymize the identities of both parties. For example, the names of any parties to a case should be omitted from the order sheets, and instead parties should be assigned an alphabetic letter (e.g., “A v. B”). Parties should also be referred to as “Plaintiff” and “Defendant” in the body of the order, and all personally identifiable information (including email addresses, telephone numbers and addresses) for both the parties and all witnesses should be removed.
The Court also ordered that no document containing any personally identifiable information about the parties could be retained by the Court Registry when any “affidavit, application or pleading” is filed under the POSH Act or POSH Rules [para. 4]. This extended beyond court documents to include copies of identity documents taken by the Registry for verification purposes and ensuring that no personal information of any parties or witnesses is entered into its court identification system (a case management tool).
This forced anonymisation of the parties’ names and any other personally identifiable information was also held to be absolute – that is, it applies even if that information is already in the public domain. The Court emphasised that any person who fails to “ensure strict compliance with these conditions of anonymity” – including the media – would be liable for contempt of Court [para. 9].
Access to official court documents
Next, the Court dealt with the restricted access to any official court documents concerning concerning the POSH Act or POSH Rules. It stipulated that the Registry must not allow anyone other than “the Advocate-on-Record with a current and valid vakalatnama” to inspect or copy any relevant filings or orders [para. 5]. The entire, main record of the case must be kept sealed and only given to a person upon the receipt of an appropriate Court order – with any digitization of those files following Court authorisation and supervision. Witness statements must also not be uploaded (digitized) for any reason. If any order must be released to the public for any reason, that version must be fully anonymised and a Court order permitting its publication must first be obtained.
Closed courts and private hearings
The Court then moved to the matter of court hearings. It ordered that all hearings must be in closed court – that is, “in Chambers or in-camera” (in private) [para. 6]. Further, only the lawyers and parties to the case are allowed to attend the hearings, and all Court support staff must exit the room – except for the Court Master/ Associate, stenographer and those providing secretarial assistance.
The Court was equally keen to emphasise that all orders and judgments on merits under the POSH Act and POSH Rules should not be uploaded to the court website for public viewing – except for this order (which was general in nature). In a similar vein, it ordered that all orders and judgments must also be delivered in a closed court ( “in chambers or in-camera”) [para. 3].
Media disclosure and recording
Finally, the Court ordered specific guidelines for the media when dealing with cases of this nature. It stated that all lawyers, parties, and witnesses to a case must not “disclose the contents of any order, judgment or filing to the media or [publish] any such material in any mode or fashion by any means, including social media” without specific Court authorisation [para. 10]. The orders also reiterated that witnesses, in addition to their usual oath in Court, should sign a non-disclosure and confidentiality statement. Any recordings from any part of the proceedings are strictly forbidden per the Court’s orders, and any breach or attempted breach would classify as a contempt of court.
The above-mentioned guidelines were passed as an order by the single judge bench, thus creating a minimum standard of procedure for the Court to ensure anonymity of the plaintiff and defendant in this case, and all parties under the POSH Act and Rules moving forward. The Court ordered for this order to be uploaded publicly and for the court to “strictly adopt and follow these and any future guidelines” as applicable [para. 12].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
By limiting the access of public and media to judicial records without prior approval, the Court technically contracted the right to freedom of expression. However, this was done due to the sensitivity involved in dealing with the cases of sexual harassment, as well as the need to safeguard the parties’ identities from disclosure to prevent any harm to them or others involved. As a result, the judge expanded the victim’s right to privacy and thus, their freedom of expression was still protected.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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