Global Freedom of Expression

The Case of the Rape Survivor’s Right to Be Forgotten (India)

Closed Mixed Outcome

Key Details

  • Mode of Expression
    Electronic / Internet-based Communication
  • Date of Decision
    February 23, 2017
  • Outcome
    Blocking or filtering of information, Official Court Documents Unavailable
  • Case Number
    Civil Writ Petition No. 9478 of 2016
  • Region & Country
    India, Asia and Asia Pacific
  • Judicial Body
    First Instance Court
  • Type of Law
    Criminal Law, Constitutional Law
  • Themes
    Privacy, Data Protection and Retention
  • Tags
    Right to be forgotten, Honor and Reputation

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Case Analysis

Case Summary and Outcome

The Kerala High Court in India ordered the Respondent, IndianKanoon.com, to remove the name of the Petitioner, a rape survivor, from a judgment in a rape case which had been uploaded on its website. The Petitioner also requested that search engines including Google and Yahoo remove search results about the case that mentioned her name. The Court recognized the ‘right to be forgotten’ and the  confidentiality of the Petitioner under Sec. 228A of the Indian Penal Code as well as her right to privacy and a dignified life enshrined under Art. 21 of the Constitution of India. e judgment uploaded on their website. The Court did so to protect the petitioner’s right to reputation and privacy under Article 21 of the Indian Constitution.

Columbia Global Freedom of Expression could not identify the official legal and government records because the judgment is no longer available on the Court’s website and other law reports possibly to protect the identity of the victim. Accordingly the information contained in this report was derived from secondary sources and it should be noted that media outlets may not provide complete information about the case.


Facts

The Petitioner was a rape survivor aged about 30 years – her name was not disclosed by the Court or by the secondary sources discussing this case. The Petitioner filed a Writ Petition before the Kerala High Court requesting that the Respondent, online law reporter IndianKanoon.org, redact her name from a 2016 judgment uploaded on their website that pertained to proceedings in a rape case. She also requested that search engines including Google (Respondent No. 4) and Yahoo (Respondent No. 7) removed search results about the case that mentioned her name.

The Petitioner argued that before publishing the judgment that mentioned her name, IndianKanoon.org did not obtain her permission or the Kerala High Court’s permission under Rule 5 of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011. Rule 5 requires that before publishing any sensitive data about a person, the person or body corporate publishing the information must seek the subject’s consent in writing. She also relied upon Section 228A of the Indian Penal Code, 1860 that prohibited the disclosure of the identity of a rape victim without her consent.

The Petitioner submitted that her personal, professional and family life had suffered due to the disclosure of her identity in the judgment uploaded on IndianKanoon.org. She explained that as a result of the publication, she was being directly associated as a rape victim and being subjected to public scrutiny and victimisation on a global level. The Petitioner requested the Court to order IndianKanoon.org to remove her name from their website in recognition of her right to privacy and her right to live a dignified life under Article 21 of the Constitution of India. The Petitioner submitted that this right had been accepted in other national jurisdictions worldwide as a part of the right to be forgotten as a rape victim’s right to protect her sensitive personal information outweighs the public’s right to information and expression.

IndianKanoon.org was not present in court to make its submissions despite being served a court notice to appear in the matter.


Decision Overview

Justice Shaji P. Chaly passed the order as a single judge of the Kerala High Court. Due to the grave nature of the issues involved in the case, the Court passed an ex-parte interim order until IndianKanoon.com appeared before the Court and the matter was finally decided.

The primary question before the Court was whether to order IndianKanoon.org to remove the Petitioner’s name from the judgment uploaded on their website that pertained to proceedings in the rape case.

The Petitioner argued that before publishing the judgment that mentioned her name, IndianKanoon.org did not obtain her permission or the Kerala High Court’s permission under Rule 5 of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011. Rule 5 requires that before publishing any sensitive data about a person, the person or body corporate publishing the information must seek the subject’s consent in writing. She relied upon Section 228A of the Indian Penal Code, 1860 that prohibited the disclosure of the identity of a rape victim without her consent. The Petitioner based her arguments on her right to privacy and her right to live a dignified life under Article 21 of the Constitution of India. She argued that her right to privacy included the right to be forgotten, as had been recognised by other jurisdictions internationally.

The Court held in favour of the Petitioner and ordered IndianKanoon.org to remove her name from the judgment published on their website. In doing so, it also recognised the petitioner’s right to reputation and right to privacy. As IndianKanoon.org was not present in Court to make its submissions, the Court noted that this was an interim order until it heard IndianKanoon.org and passed final orders in the matter. Further details about the case are not present on the Court’s official website, possibly to protect the identity of the victim. However, secondary sources suggest that IndianKanoon.org agreed to remove the Petitioner’s name and not contest the case any further.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Mixed Outcome

This decision expands freedom of expression in the sense that the right to privacy is considered integral for the effective utilization of the right to expression. However, the decision’s reasoning cannot be examined in detail as the official order or judgment was not published on the Court’s website or by other legal reporters. In this sense, it might have been more conducive for open justice and free expression if the Court had redacted the petitioner’s name from the order but nonetheless published the redacted order on its website and also allowed legal reporters to report the proceedings in the case.

Global Perspective

Quick Info

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • India, Constitution of India (1949), art. 21.
  • India, Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules (2011), Rule 5
  • India, Indian Penal Code, Act No. 46/1860, sec. 228A

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

As a decision of a single judge bench of Kerala High Court, the decision is binding on all authorities and lower courts in Kerala.

Official Case Documents

Reports, Analysis, and News Articles:


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