'Reporting Can't Be Restrained, Issue Is Of Masking Identities': Kerala High Court Reserves Order On 'Right To Be Forgotten' Pleas

The Kerala High Court on Thursday reserved its decision in the batch of petitions seeking enforcement of 'Right to be Forgotten' and consequent removal of a judgement copy and information related to it from various online portals.

The Division Bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen, after hearing the submissions of Senior Advocate Sajan Poovayya, appearing on behalf of Google LLC, reserved the matter. 

During the oral arguments today, it was submitted by Advocate Poovayya that the "architecture of the Information Technology Act is not such that it gives the intermediary a carte blanche escape route from any clutches of the law in this country, and that it is also not the case where most large social media intermediaries or intermediaries governed and operated in foreign jurisdictions do not indicate that they would not abide or subject themselves to Indian courts". 

Poovayya pointed out that the crux of the issue in the present case was not whether the intermediary is or is not complying with the 2021 Rules. The counsel stated that if the intermediary does not comply with the Rules, the safe harbour protection under Section 79 of the Act would be removed, holding the intermediary liable for the information that has been published.

In this light, the Counsel pointed out that the case herein was whether a particular information as such could be effaced from the public domain entirely. 

"It is not the case of whether LiveLaw is liable for what has happened, whether Google is liable for what has happened, [or] who should pay compensation... The petitioner seeks that there is a particular information in public domain, which has proceeded therein through court proceedings, and consequently, whether there should be a direction for LiveLaw or any other intermediary not to have it on public domain", the Senior Counsel submitted. 

In this light, the Senior Counsel submitted that compliance with the 2021 Rules in itself was not of significance herein. 

The Senior Counsel further pointed out that as per Section 79 it was evident that the intermediaries would be held liable, save in certain limited cases. 

Poovayya emphasized that in Virginia Shylu, the question was whether Google would be liable for throwing up a search result when someone seeks to obtain information about her in terms of the Court case, since it had already been made available on the Court website, as well as had been reported by other media. 

The Counsel in this light added that even if such other media houses could be held liable - though quickly adding that in this case they certainly were not so liable, Google would still would not be held liable, provided the provisions of Sections 2(a), 2(b) and 2(c) of the Rules are followed. He also submitted that Rule 3 adds statutory flavour to the Common Law Test of Due Diligence, as well. 

The Senior Counsel then submitted a hypothesis that if the intermediaries did not follow the requisites in Rule 3(1), the safe harbour provision would vanish, and the intermediary would then be prosecuted before a Court of law. 

Here, the Court pointed out that it was not concerned with the compliance or non-compliance with the rules, but whether the content would require to be masked and to what extent from the institutional perspective this would have to be done. 

"We have already made it clear, that as far as the reporting or bringing it into the public domain is concerned, it cannot be restrained", the Court noted.

Here, the Senior Counsel conceded, and added that when information pertaining to a person moves into the public domain through a process known to law, the question arises whether it could be replaced or removed, since it would affect the right of persons to access the information.

The Senior Counsel also drew the attention of the court to two European cases, to buttress his argument that even if there was a final decision by the Court that a particular publication regarding a person was wrong and compensation was also ordered, it would not be appropriate to completely erase such a case from history.

He further stressed that the right to be forgotten could not be elevated to such a status, since the third party has a right to receive, comment, search and research such information which has already been made available on the public domain. 

In another connected petition where a doctor had been levelled with false accusation, the Court took note of a POCSO Case where a newspaper had published a case against a "renowned person" who had attempted to teach school children the differences between 'good touch' and 'bad touch'. But, ironically, the person got embroiled in a similar case, after a girl student complained against him.

Although it was ultimately found to be false, and the police had closed the case against him, the Court questioned what would happen to the already available newspaper reports against him, which had been published with much vigour. 

"There are areas of ethics. Unfortunately, sensationalism is the only concern for newspapers and they publish all these news", the Court orally remarked. 

The Court has thus, reserved its judgment in the said matter. 

Case Title: Vysakh K G v. Union of India and Other Connected Cases