Right To Be Forgotten Can't Be Used As Tool To 'Erase History': Google Tells Kerala High Court

The Kerala High Court this week continued hearing a batch of petitions seeking enforcement of 'Right to be Forgotten' and consequent removal of identifiable information from judgments or orders published in various online portals and the High Court Website.

A Division Bench consisting of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen heard the case of a dentist who is aggrieved by the appearance of his name on Google search engine and reflection of a previous case he was embroiled in. It was alleged that the petitioner's second marriage, his sister's marriage and several other personal hardships had befallen due to publication of the case against him.

The bench observed that the very aspect of independent judiciary envisages access to information. It thus asked how the same could be denied to the public.

His counsel, Advocate Andrew submitted that there are no qualms regarding High Court website itself displaying the judgment, and that anyone who wanted to research and find a particular decision could simply visit the Court website to do so. However, the grievance is with respect to private non-State media such as IndianKanoon uploading such details, by extracting the entire text of judgment from the High Court website. He submitted that there are no rules regulating such activities.

Justice Mustaque then pointed that some cases, by virtue of the parties involved, garner more public attention than others. He thus asked Andrew whether it would be appropriate to permit just the judgments of cases relating to certain popular figures alone to be available on the public domain, and not those of the others.

The counsel responded that there ought to be a proper procedural rule regulating the same, and that even under Article 21, this was of utmost import. He underscored that privacy would not be lost simply because the individual is in a public space and thus, there ought to be a procedure/ mechanism whereby public documents could go out and reach a private player such as IndianKanoon.

"Tech-permitted journalism is now more than ever", the Counsel quipped while underscoring that this signified "an unprecedented need for regulating the extent to which such information is stored in public domain".

In his arguments for Google LLC, Senior Advocate Sajan Poovayya submitted that once a material is put in public domain, i.e., the first publication (through High Court website), then there is an inherent constitutional right that such materials are available for assimilation, and people must have access to it. Thus, he contended that there cannot be an order directing an internet intermediary to remove content from the internet, especially outside the provisions of reasonable restrictions under Article 19(2).

Poovayya submitted that right to be forgotten cannot used as a tool to "erase history". He contended that the said right is a small facet of "informational privacy" which forms an integral part of right to privacy. Therefore, the right to be forgotten, wherever it is asserted, is only in the informational privacy world because outside of it, there is no concept of the right to be forgotten.

He further contended that the right to privacy cannot be used as a "preemptive weapon" to prevent the dissemination of information to the public domain. He submitted that in our Constitutional set-up, free speech under Article 19(1)(a) prevails and any restriction on this right should be found within the reasonable restrictions provided under Article 19(2) of the Constitution.

Poovayya submitted that in sensitive cases where it is essential to mask identity of parties, law prescribes statutory duty. For instance, Section 327 CrPC permits "in camera" proceedings; Section 23 of POCSO Act prevents media from disclosing the identity of a child victim. He conceded that in these cases, right to information does not prevail over right to privacy. However, he added that except for these specific statutory bars, in all other cases right to information is ubiquitous and right to privacy cannot be expanded without any fetters. To substantiate his contentions, the counsel referred to the decisions of the Apex Court in Justice K. S. Puttaswamy and Shreya Singhal case.

Lastly, Poovayya contended that in today's world of the third phase of web development and artificial intelligence, most search engines and internet intermediaries have a single global platform, and in such context, when the intermediary is operating a single platform for the entire world, it becomes difficult for the intermediary to determine at what point they are in compliance with all the laws and at which point there is a breach- as one jurisdiction might allow it, and the same might be prohibited in another.

Advocate Kala T. Gopi appearing for another petitioner, who was charged with stalking a lady, contended that even though the case against him was quashed, the details regarding the incident could still be found on Google. 

"The fact that the judgment comes in public domain itself is wrong", the counsel argued. 

The Counsel further submitted that privacy right also envisages the right to control dissemination of information, and that it was important that the individual knows the extent of information that is published regarding themselves on the public domain. 

The case has been posted for further hearing on 6th October 2022. 

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