Right To Be Forgotten | Kerala High Court Refuses To Expunge Remarks Suggesting Google To Use AI Tools To Remove Identifiers From Judgments Online

The Kerala High Court recently refused to expunge remarks from its Right to be Forgotten judgment, whereby it was opined that Google is not 'content blind' and it cannot shirk liability to remove judgments and content disclosing personal details of parties.

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen dismissed the petition filed by the search engine platform, seeking review of its judgment rendered last year in Vysakh K.G. v. Union of India & Anr. and other connected cases [2022 LiveLaw (Ker) 665].

Google was also aggrieved by observations regarding deployment of Artificial Intelligence tools to identify the nature of content and remove the same, if found to be violative of the fundamental rights of persons.

However, the division bench said the aforementioned observation was only in the nature of a 'suggestion' that would have to be decided upon in appropriate litigations.

In Vysakh KG (supra), the Court was posed with the issue of judicial orders and judgments being allowed to remain online for eternity, thereby leading to infringement of the 'right to be forgotten' of parties. It also discussed about the period for and circumstances under which the parties could invoke such a right. 

The Court had, in that context, observed that it would have to recognize such a right to be forgotten and direct the removal of such content available online on a case-to-case basis, in the absence of any legislation. At that juncture, Google had raised the argument that it was only an 'intermediary' and could not be held liable for publication of contents or judgment online. 

The Court had however observed that while judgments are 'public records', and making them available online could not be faulted with, Google also could not claim to be 'content-blind'. 

In paragraph 63 of the judgment, the Court had categorically declared: 

"In the era of artificial intelligence, it is quite possible for Google to identify the nature of the content and remove the same. Google is not a mere passive conduit. They are now using AI tools to identify the needs and requirements of a user online and attempting to bring out the best results in what they are looking for online. Keeping aside the Intermediary Rules etc., we are of the firm view that Google cannot claim itself as a mere intermediary, allowing the contents to appear for the viewers or users in the digital platform. The publication of any valid records is protected by the Constitution as forming part of Article 19(1)(a), the right to freedom of speech and expression. There is no difficulty for Google during the era of advancement of AI to create a tool and identify particular data and remove the same. If that is not done, it would really infringe the claim based on the right to be forgotten". 

It is seeking to expunge the said observation in the judgment that the present review petition was filed.

It was argued by the counsels appearing on behalf of Google that an earlier portion of the judgment had found Google to be an intermediary. However, in the latter portion it said Google cannot claim itself as a mere intermediary. Such a contrary statement could not be made by the Court, the counsel said.

The Court thus clarified that the said observations were made only with respect to the claim based on fundamental rights, and not with reference to the 'normal activities' of the platform which are referable to the Information Technology Act and Rules. It cited Rule 3(d) of the IT Rules, 2021 which requires Google to remove contents based on a Court order. Thus Court said that its observations are not contrary to the statutory provisions. 

The Court added that it had only suggested the deployment of AI tools to identify and remove data, and had not 'demanded' the same to be done, and observed that such matters could be decided in the respective litigations. 

"These observations having no consequences, we find no reason to expunge the observations from the judgment," it observed while disposing the review petitions. 

Case Title: Google Inc. v. XXXX & Ors. and other connected matters

Citation: 2023 LiveLaw (Ker) 182

Click Here To Read/Download The Judgment