1.In this fairly detailed judgment, this Court is being called upon to determine the question of whether the privacy rights of the applicants herein have been violated, by the Respondent’s publication of a court ruling in the electronic Kenya Law Reports (eKLR).
2.These proceedings were initiated by way of an originating Notice of Motion dated November 1, 2021. The applicants are Tumaz and Tumas Enterprises Limited, Mwal-Mart Limited and Julius Mwale while the Respondent is the National Council for Law Reporting (NCLR). The 1st and 2nd applicants are described as limited liability companies while the 3rd applicant is the Director of the 1st and 2nd applicants and is also the founder of Mwale Medical and Technology City (MMTC) which encompasses the 2nd applicant.
3.The Respondent on the other hand is a state corporation anchored under the Office of the Attorney General and Department of Justice. Its statutory mandate as established under Section 3 of the National Council for Law Reporting Act No.11 of 1994 is the monitoring and reporting on the development of Kenya’s jurisprudence through publication of Kenya Law Reports and updating the Laws of Kenya.
5.It is asserted by the applicants that kenyalaw.org is a public domain and therefore the impugned legal Report has been published to a global audience and violated and infringed on the applicant’s rights under the data protection laws.
6.According to the applicants, the decision was maliciously published as the Respondent failed to inquire into the facts of the case prior to the publication thereof.
7.The applicants aver that as a result of the impugned publication, and the respondents’ negligence, the applicants’ reputation as outstanding and honest business entities and or persons has been ruined and that they have consequently suffered loss and damage for which they are aggrieved.
8.The applicants further lament that the impugned publication has devastatingly impacted the reputation and standing of the applicants and their affiliate companies in Kenya and overseas which impact has the potential to cause a serious and long-lasting impact on the applicants.
9.Further, it is asserted that the reality of today’s digital landscape is that people frequently formulate their first and sometimes only opinion a person or a business based on what their digital footprint tells them.
10.According to the applicants, most of the people reading the search results will simply see that the applicants are involved in legal action and will assume the worst, and will assume that the applicants were sued or were caught doing something shady, and were taken to court over it.
11.The applicants maintain in their pleadings that their business reputation which they have built for years has been irreparably damaged as the Legal Report has made many of the Applicants’ suppliers question the applicants' credibility.
12.The applicants accused the Respondent of failing to verify, ascertain and validate the corrections and accusing of the legal information in the impugned Legal Report prior to publication and that such failure is detrimental to the applicants. They add that the matter is still pending before this court and has high prospects of success.
13.It is claimed that the publication has succeeded in chasing away investors and customers from the applicants to their competitors.
14.Further that the applicants are apprehensive that the continued publication of the Legal Report will have long lasting impact and the applicants will not be able to regain their consumers and suppliers first.
15.It is asserted that prior to initiating these proceedings the applicants approached the Respondent, the site host of the impugned Legal Report with a view of having the same pulled down but that the Respondent has indicted the unwillingness to do so without a court order directing it to do so. According to the applicants, this is a purely commercial dispute between the parties.
16.Finally, it is alleged by the applicants that the Respondent stands to suffer completely no prejudice if the orders sought are issued, bearing in mind the fact that not all the judgments, Rulings and opinions of superior courts are published by the Respondent.
17.According to the applicants, the Respondent picks and chooses which judgments, Rulings and opinions to report/public, and that it is only fair that it be made to desist from publishing reports pertaining the applicants, in the interest of justice.
18.The applicants urged this court to exercise its inherent jurisdiction to order the decisions as impugned to be pulled down from the Respondent’s website.
19.For the above reasons/grounds, the applicants pray for the following substantive orders against the Respondent:1.Spent2.Spent3.This court be pleaded to order that the decision in San Electricals Limited Vs Tumaz and Tumaz Enterprises & 2 Others eKLR dated February 20, 2020 be permanently pulled down from the Respondent’s websites or in whatever form.4.An injunction do issue permanently restraining the Respondent from publishing any decision that pertains the Respondent decision (sic) on their websites or in whatever form.5.The applicants be at liberty to apply for such further orders and/or directions as the Honourable court may deem just and expedient to grant.6.Costs of the application be borne by the Respondent.
21.It is supported by an affidavit sworn by Mr. Julius Mwale, the 3rd applicant and direction of the 1st and 2nd applicants on November 1, 2021.
22.In the said affidavit the 3rd applicant deponent has reiterated the grounds which I have reproduced above and annexed a copy of the Legal Report dated February 20, 2020 together with the correspondence between the applicant’s counsel Javier Georgiadis & Sylvester Law LLP and the then CEO, Editor, for the Respondent, dated 13/5/2021. As the depositions in the supporting affidavit are a replica of the grounds which I have reproduced hereinabove, it serves no purpose to replicate them here.
23.The Origination Motion was opposed by the Respondent who filed a Replying affidavit sworn by the Respondents current CEO Prof. Jack Mwimali on January 21, 2022 wherein he deposes that the allegations leveled against the Respondent in relation to its statutory mandate are not the and that those allegations border on either the applicants’ lack of understanding of the functions of the Respondent or deliberate attempt by the applicants to mislead and distort the true facts from this curt and the entire public.
24.The Respondent contends that in publishing the impugned decision, it was carrying out its statutory mandate and that under Section 19 of the National Council for Law Reporting Act, the statute establishing the Respondent, every Judge of the superior court is mandated to furnish to the Editor of the Respondent as soon as possible a certified copy of the judgment or ruling for purposes of reporting and publication, which mandate , according to the Respondent, is in line with the constitutional provisions protecting the right to information under Article 35 of the Constitution that counterbalances the right to privacy under Article 39.
25.According to the Respondent, it received and published the decisions, in compliance with the law and as received from the primary producer.
26.Further, that the National Council for Law Reporting Act does not give the Respondent any powers to change, alter, inquire or seek to verify certified a duly forwarded decision before publishing the same, save where there is express prior instructions and or requests for anonymization or data protection, which was not the case in the instant matter.
27.The Respondent contents further that the decision in question was a court decision, representing a fair representation of the proceedings that were conducted in court and forwarded by the Judge to the Respondent hence the Respondent cannot be held responsible in any way for the contents and any resultant repercussions on parties arising from the publication.
28.The Respondent further contends that there is no demonstration of which part of the published decision appears to injure the applicants’ reputations as the matters in the decision are not personal in nature but arising from an agreement between the parties and which agreement can be found elsewhere to the public besides the Reporting.
29.Further, that in any event, the decision complained of was as a result of an open hearing where parties subjected themselves to the open hearing with full particulars of the documents being filed by their respective counsel and hence, if the applicants wanted and required any such protection, they should have taken necessary steps to ensure that the same is not accessible in the public domain.
30.That should this court grant the orders sought in the originating motion, the effect would be to permanently injunct the Respondent from ever publishing anything touching on the applicants, which injunction will be barring the Respondent from carrying out the statutory mandate, against public policy and breach of the right to access to information, thereby setting a bad precedent wherein parties who willingly subject themselves to hearing in open courts will seek to unnecessary protect the publication of the findings and interpretation of the law and that this will be recipe to curtail the development of jurisprudence.
31.The Respondent therefore urged this court to dismiss the Originating Motion filed by the applicants against the Respondent.
Analysis And Determination
61.I have considered the applicants’ originating Notice of Motion, the grounds thereof and the supporting affidavit and the two annextures. I have given equal consideration to the Respondent’s Replying affidavit and written submissions by the respective parties’ counsel. In my humble view, the main issue for determination is whether this Motion has any merit. There are other ancillary questions that I will pose and endeavour to resolve.
62.As earlier stated, the application is an originating Notice of Motion brought under the provisions of Sections 1A, 1B, 3A and 3B as well as Section 63(e) of the Civil Procedure Act and Order 5 Rule 1 of the Civil Procedure Rules and other enabling provisions of the law.
64.The applicants claim that by such publication, the Respondent acted maliciously and negligently, that the respondent should have verified the decision first and that the publication significantly affected the applicants’ revenue streams as it has succeeded in chasing away the applicant’s investors and customers to the competitors.
65.According to the applicants, there was no request for publication of the decision in question and that despite the request for pulling down due to its negative commercial impact on the business of the applicants, the Respondent declined and asked for a court order to that effect.
66.On the part of the Respondent, it admits reporting/publishing the decision of the court and contends that the publication of court decisions is its statutory mandate under the enabling legislation, National Council for Law Reporting Act and that such publication is not malicious as the Respondent is not expected to edit or verify decisions send to it by the superior court judges.
67.Further, the Respondent contends that to be injuncted from publishing the decision would be to curtail the public’s right to access information and would also curtail the growth of jurisprudence.
68.According to the Respondent, what the applicants should have done, if they had issues with the decision which was rendered publicly after a public hearing, was to apply for anonymization of the decision applying the established anonymization principles as the Respondent had in place developed anonymization guidelines.
69.The above is a synopsis of each parties’ positions in this matter.
70.Having summarized the respective party’s position in this case which I find unique, I must answer the following questions which arise from the facts pleaded and the cited law, and in no order of preference as some questions shall be answered in combination with others.1.Did verbatim publishing or reporting of the court decision breach the applicants’ party right to privacy and or expose them to reputational damage?2.Were the Respondents expected to have edited or verified the decision and if so, for what purpose, before publishing it?3.Does the Respondent have statutory mandate to publish superior court’s decisions and if so, does it enjoy any discretion to refuse to publish such decisions?4.Is publication of court decisions dependent on any specific requests?5.Is the respondent duty bound or obliged to pull down a law report and if so, under what circumstances?6.Whether the applicant is entitled to an injunction sought and if so, whether such an injunction would curtail the public’s right to access information and growth of jurisprudence?7.What remedy do the applicants have?8.What orders should this court make?9.Who should bear costs of this Motion?
71.On to whether the verbatim publishing or reporting of the court’s decision breached the applicants’ party’s right to privacy and or exposed them to reputational damage as alleged by the applicants in their pleadings, affidavit and submissions, I will resolve this question by combining it with the 2nd and 3rd questions. Before I do that, I will first define what privacy is.
72.Black’s Law Dictionary defines privacy as, the “right to be let alone, right of a person to be free from unwarranted publicity; and right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.”
73.From the onset, it must be appreciated that Privacy is a facet of human right hence it is inalienable from the personality of a human being. In Kenya, the right to privacy is guaranteed under Article 31 of the Constitution. The Article provides that:
74.The relevant provision here is Sub clause (c), although the applicants did not specify what aspect of their privacy was violated, and neither did they cite the correct provisions under which the Motion was brought, Sub clause (c) of Article 31 of the Constitution guarantees every person’s right not to have information relating to their private affairs unnecessarily revealed.
77.The right to privacy is closely linked to the right to inherent dignity and the right to have that dignity respected and protected, as specified in Article 28 of the Constitution.
78.The right to privacy and to inherent dignity as stated above are contained in our expansive Bill of Rights which is the cornerstone of our democracy. Under Article 12 of the Universal Declaration of Human Rights (UDHR) which Kenya is a party to:
82.In this case, therefore, it is for this court to determine whether the publication by the Respondent of the decision of the court following a public hearing and determination, by the court was in violation of the applicant’s right to privacy or that it exposed the applicants to reputational damage.
83.Among the factors to be considered in determining whether the right of privacy has been violated are that the court must establish whether the applicant or petitioner has demonstrated to the satisfaction of the court that the information was obtained in an intrusive manner, that the information was about intimate aspects of the applicants’ personal life; and that it involved data provided by the applicant for one purpose which was then used for another; that the said information as obtained by the Respondent was disseminated to the press or the general public or persons from whom the applicants could reasonably expect such private information would be withheld. This is what the South African Constitutional Court held in the case of Mistry Vs Interim National Medical and Dental Council of South African (1998)SA 1127(CC).
84.The question is whether the Originating Motion herein and the claims leveled against the Respondent by the applicants meet the above threshold
85.The Respondent in rebutting the assertions by the applicant contends that its publication of the decision in question and by and large all decisions of superior courts is a statutory mandate under the National Council for Law Reporting Act. Further, that in publishing the said decisions, it is under no duty to edit or verify the same as it publishes the decisions as send to it by the judges of the superior courts hence no malice can be attributed to the publication.
86.In addition, the Respondent contends that to injunct it from publishing the court decisions would curtail the public’s right to access information and curtail the growth of jurisprudence in the country.
87.Therefore, to answer the question of whether the applicant’s assertions establish conditions that must be met for a claim for the breach of their privacy to be proven, I must analyze the statutory mandate of the Respondent and their contention that an injunction against them would curtail the public’s right to access information as well as the growth of jurisprudence.
88.The mandate of the Respondent is derived from the National Council for Law Reporting Act No. 11 of 1994, the long title and preamble to the said Act is, “An Act of Parliament to provide for the establishment of a National Council for Law Reporting to publish Kenya Law Reports and provide for connected purposes.”
89.Section 2 of the said Act establishes the National Council for Law Reporting referred to in the Act as the “council.”
90.The council, which is the Respondent herein is a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name.
91.Section 3 of the Act sets out the functions of the council which shall be :a.responsible for the preparations and publication of the reports to be known as the Kenya Law Reports, which shall contain judgments, rulings and opinions of the superior courts of record;b.undertake such other publications as in the opinion of the council are reasonably related to or connected with the preparation and publication of the Kenya Law Reports;c.perform any other functions conferred on the council or under the provisions of any other written law.
92.The composition of the council is:a.The Chief Justice;b.The Attorney General or his representative;c.A Judge of the Court of Appeal nominated by the Chief Justice;d.A Judge of the High Court nominated by the Chief Justice;e.A public officer being an advocate nominated by the Attorney General;f.Two advocates of not less than seven years standing nominated by the Law Society of Kenya;g.A dean of the Faculty of Law, University of Nairobi, or his representative;h.The Government Printer or his representative not below the rank of the Deputy Government Printer; and the Editor appointed under Section 7.The Chief Justice shall be Chairperson of the Council.
93.Under Section 8(1) of the Act, the Editor is responsible for the preparation and publication of the Kenya Law Reports and for such other publication as may be approved by the council under Section 3.
94.Section 19 of the said Act provides that: “Every judge of the superior court of record shall as soon as practicable after delivering a judgment, ruling or an opinion cause to be furnished to the Editor a certified true copy of the judgment, ruling or opinion delivered by him.” This is mandatory and it is one of the parameters that the superior courts are measured by in the Performance Measurement Understanding evaluations which are undertaken on an annual basis for each and every judge. Such determinations or decisions must be submitted to the Kenyalaw.org within seven days of the delivery of the decision, whether it is a ruling or a judgment.
95.Under Section 20 of the Act, returns are to be made by the Registrars of the superior courts on a monthly basis, to the Editor, providing him with a list of all judgments, rulings or opinions delivered by the High Court or the Court of Appeal as the case may be.
96.In addition, Section 21 of the Act provides that “Kenya Law Reports shall be the official law reports of Kenya which may be cited in proceedings in all the courts of Kenya.”
97.From my analysis of the authorities and statutory provisions that I have cited above and which the applicant’s counsel found no time to refer to, the right of privacy is the right of a person to be left alone, to be free from unwarranted publicity and to live without unwarranted interference by the pubic in matters with which the public is not necessarily concerned.
98.Thus, an actionable invasion of the right to privacy is the unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful invasion into one’s private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. It also includes, usually, by statute, a constitutional right to be left alone from governmental intrusion into one’s private affairs, although the rights and the needs of the government to provide protection to society are balanced.
99.In Uranga v Federated Pubis, Inc, 138 Idaho 550 (2003), it was held that liability of invasion of intrusion must be based upon an intentional interference with the Plaintiff’s interest in solitude or seclusion, either as to his/her person or as to his/her private affairs or concerns. However, that invasion of privacy by intrusion does not depend upon just any publicity given to the person whose interest is invaded or to his/her affairs.
100.To be actionable, the prying or intrusion into the claimant’s private affairs must be of a type which is offensive to a reasonable person, except in the case of wrongful appropriation of one’s name or likeness where the act complained of need not be highly offensive to constitute invasion of privacy.
101.It is worth noting that public disclosure of private facts or affairs occur when a person gives publicity to a matter that concerns the private life of another but it must be a matter that would be highly offensive to a reasonable person and that it is not of legitimate public concern.
102.In Zieve V. Hainston, 266 Ga.APP 753 (Ga.Ct.App.2004), the court held that to establish a cause of action for invasion of privacy on the ground of public disclosure of private facts, the courts consider three elements namely:
103.Further, that in an action for invasion of privacy based on the alleged wrongful disclosure of private facts, the plaintiff/claimant must show that the disclosure complained of was actually public in nature. There is no liability when a defendant merely gives further publicity to information about the Plaintiff that is already public.
104.In a nutshell, in an action for a privacy right violations, a claimant must allege and prove the following elements:1.that there was an unwarranted invasion of the individual’s privacy;2.that there was intentional intrusion on his her private concerns;3.that publication was without the claimants’ consent, where such written consent is required; and4.that the claimant’s name or picture was used for trade or advertising purposes, where privacy invasion is alleged by publication of one’s name or likeness for trade and advertising purposes.
105.It is worth noting that in actions for privacy right violations, truth is not a defence and it is not necessary to allege or prove special damage. A suit for damages or an injunction where damages would not adequately redress an injury is sufficient.
106.In Auto Shanker case Rajagopal v State of Tamil Nadu AIR 1995(SC) 254, the Supreme Court of India discussing and determining the issue regarding the conflict between freedom of speech and expression and Right to privacy, the Supreme Court laid down that the right to privacy is subject to certain exceptions. The Court stated that:
107.In the instant case, the applicants alleged that no one requested for publication of the decision and that the publication has occasioned them reputational damage as reputable business persons and that their competitors have taken advantage of the publication of the decision.
108.Generally speaking, the Government cannot be liable for privacy intrusion by communicating public information, if no malice on the part of the government is pleaded and proved. For example, the government or public entity will not be liable for releasing information regarding a person’s criminal conviction to the public if the applicant:i.had discussed about the conviction in a letter to a newspaper;ii.criminal conviction record is public information;iii.was under probation supervision;iv.puts forth no evidence about confidential information release to the public.
109.I have considered the decision which was reported by the Respondent via avis my analysis above. The main suit between the parties thereto is still pending before court. The application which gave rise to the published ruling was interlocutory in nature. It was heard in public and a ruling publicly pronounced. The applicants never sought for a private or in ‘camera’ hearing or delivery of the ruling by the learned Judge in private.
110.The applicants also never sought for any anonymity of the parties or parts of the Ruling. They never asked the court to consider the matter private although the dispute is between private persons/natural and corporate. No minors are involved in the dispute. It is not a matter involving sexual offences or family disputes. It is a commercial dispute between and among entities.
111.True, nobody requested for publication but was the Judge duty bound by statute to send a certified copy of the ruling to the Editor National Council for Law Reporting for publication of the ruling and did the Editor National Council for Law Reporting err in publishing the decision? I do not think so.
112.The right to privacy as discussed above is one of the most cherished rights in our Constitution. However, privacy is not absolute or sacrosanct. It must be balanced with the other rights and needs of the other citizens and the person’s own actions in pursuing exposure or encouraging it.
113.There is no evidence placed before this court to show that the Respondent required consent of the applicants herein to publish the decision received from the Judge. There is also no evidence to show that the Respondent had malice in publishing the ruling. No particulars of malice were stated or disclosed by the applicants.
114.The hearing of the application giving rise to the ruling having been done in public, I find that the Respondent only published information or the decision which was already public information, information which the public had a legitimate right to access.
115.For that reason alone, I find that there was no unwarranted invasion of the applicants’ privacy. I further find that there was no intentional intrusion on the applicants’ private concerns and that no consent, whether written or oral was required for the Respondent to publish the decision which publication was in their statutory mandate.
116.I say so because the applicants have further not demonstrated to this court by way of evidence that the Respondent was under any duty to verify or edit and to edit or verify what in particular, from the ruling of the learned judge, before deciding whether to publish it or not. This court has also not been told that the decision as published had inaccuracies or errors committed by the Respondent.
117.Neither is there evidence that the respondent was under any legal duty to edit the decision upon receiving it from the learned Judge who is the author thereof. I have also not been told that the Respondent should have rejected the decision and or sought for further permission from the Judge before publishing it.
118.Where a party has publicly participated in a public hearing and decision making and in a case which does not fall in the categories of cases where there is need for redaction of some material or anonymization, then that person cannot turn around and claim that their privacy has been violated by the publication of the court decision. This is so because the facts disclosed in the ruling publicized are public facts and there is absolutely no scintilla of evidence to show that those facts in the ruling would be offensive and objectionable to a reasonable person of ordinary sensibilities.
119.Furthermore, if the applicants herein considered their case to be so private in nature and wanted the public including their customers and or competitors not to know that the applicants were involved in any of litigation history with other persons, nothing prevented the Applicants from applying to the National Council for Law Reporting, the Respondent herein for anonymization of the part of the ruling. Failure to do so, the Respondent cannot be directed by this court to pull down a law report whose accuracy, as verbatim public information of court decisions has not been challenged. This court has not been shown what reputational damage the applicant has or stands to suffer by the ruling following its publication by the National Council for Law Reporting.
120.I agree with the Respondent in their contention that the State is the major guarantor of human rights and freedoms and that to injunct the Respondent from disseminating court decisions to the public, without any proof of damage or injury that such dissemination would cause to an individual or public, is tantamount to curtailing the public’s right to access information as guaranteed in Article 35 of the Constitution and further curtailing the growth of jurisprudence in the country. In addition, I find that curtailing the publication of court decisions would erode the public’s confidence in the courts.
121.In an Article -“Publication of court order. No violation of Right to privacy: Indian Kanoon opposes Plea in Kerala HC to remove personal details from Reported Judgment, it is stated that where the law allows the publication of matters which are public records including court records and orders of courts or tribunals, Court records are recognized world over to be public records hence in some jurisdictions, no permission is required to publish court cases.
122.For example, Section 52(1)(q)(iv) of the Indian Copyright Act provides that publication of court judgments does not constitute an infringement of copyright. This is because judgments and court orders are exempted from copyright protection and are in the public domain, the instances of compiling them off as original works are common place. Only the court can expressly bar the publication of a case or where the law bars such publication. This position was well stated by the Supreme Court of India in R. Rajagopal v State of T.N. 1995 AIR 264, 1994 SCC (6) 632 decided on 7.10.1994 where the Supreme Court defined the scope of the Right to Privacy, the Court held that publication of court records will not constitute any violation of the right to privacy. It held that:
123.In Kenya, Section 2 of the Copyright Act excludes statutes or written laws and judicial decisions from being literary works that can be subjected to copyright. In other words, one cannot claim that they own a statute or a court decision and seek for its protection under the Copyright law.
124.Thus, the right to privacy must be balanced with the right to access information held by the State. Access to public legal information is the property for the common good and therefore unwarranted restriction amounts to an attack on the development of jurisprudence in the country. Further, it would muzzle the Respondent’s statutory mandate if parties who elect to participate in public trials turned out to sue the National Council for Law Reporting or even the superior Court Judges who are also mandated by law to submit their decisions for publication by the Respondent herein.
125.The National Council for Law Reporting cannot therefore modify or remove particulars from a case except in limited cases, involving Children, Sexual offences or in family matters such as divorce or adoption or where an application for anonymization is made and allowed or where the court has given such directions in a matter where, publicizing one’s private affairs without a legitimate public concern would violate that person’s right to be free from unwarranted appropriation of one’s personality.
126.It is further not lost to this Court that Article 50(1) of the Constitution guarantees every person the right to a fair hearing and to have any dispute that can be resolved by application of the law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
128.I must mention that even this decision must be submitted to the Respondent herein for publication within the next seven days. Should this court therefore be told that to do so would violate the applicants’ right to privacy? It would be such a dangerous precedent setting for the superior Court judges to be looking on their shoulders to see who is watching them and who would be reading their decisions before making the decisions themselves and deciding which decisions should be published and which ones should not, which is a negation of the principle of decisional independence of Judges.
130.Furthermore, as everywhere in society, also to the judiciary, the internet has brought a revolution. Apart from the growing possibilities for on-line proceedings, by offering the opportunity to publish vast quantities of court decisions on-line, the judiciary can increase its visibility and transparency substantially.
131.No doubt, published court decisions are important base materials for legal professionals, academic researchers, journalists and private companies in the legal information market. In addition, it would be a violation of the right to access justice (as guaranteed under Article 48 of the Constitution) for those persons who cannot afford private legal representation if they were curtailed from accessing court decisions and the only way to access those court decisions is by way of publication. Past court decisions assist even the public spirited litigants
132.Mentioning the Data Protection Act of 2019, for example, the Act was enacted to give effect to the provision of Article 31(c) and (d) of the Constitution which guarantees every person the right not to have information relating to the family or private affairs unnecessarily required or revealed and the right not to have the privacy of their communication infringed.
133.The Act also creates offences against persons or data controllers who fail to comply with various provisions of the Act.
134.In compliance with the Data Protection Act, from my deep research, I found that the Respondent has developed anonymization guidelines which the applicants herein should have taken advantage of and applied to the Respondent, with acceptable reasons of course, to anonymize the decision and only when the Respondent unreasonably declines the request, would the applicants seek intervention of this Court. No such request was made by the applicants as required under Section 52(1)(b) of the Data Protection Act.
136.For all the above reasons, I find this originating motion totally misguided, frivolous and vexatious.
137.I find that the applicants failed to discharge the burden of proving that their privacy was violated by the Respondent National Council for Law Reporting’s publication of a court ruling in a matter which was heard publicly and the decision rendered publicly by the Hon. Judge, which decision or case does not fall in any of the categories of cases requiring redaction or anonymization.
138.The originating motion dated November 1, 2021 is hereby found to be devoid of any merit on all fours. It is dismissed. I order that each party shall bear their own costs of this case.
139.File closed. I so order.