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Google to Kerala HC: Right to be Forgotten Cannot be Used as Tool to ‘Erase History’

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Google India

Sakina Tashrifwala

Published on: October 1, 2022 at 19:23 IST

This week, the Kerala High Court continued considering a batch of petitions seeking implementation of the “Right to be Forgotten” and, as a result, the removal of identifying information from judgements or decisions published on different internet portals, including the High Court Website.

A Division Bench comprised of Justices A. Muhamed Mustaque and Shoba Annamma Eapen heard the case of a dentist who is upset over the presence of his name on Google search engine and the reflection of a prior case in which he was involved.

It was claimed that the petitioner’s second marriage, his sister’s marriage, and a number of other personal difficulties had occurred as a result of the publishing of the case against him.

The panel noted that the entire concept of an independent judiciary requires access to information. As a result, it questioned how the public could be denied the same.

His attorney, Advocate Andrew, argued that there is no problem with the High Court website presenting the ruling, and that anyone who wanted to investigate and discover a specific judgement could just go to the Court website.

However, the complaint is about private non-state media, such as Indian Kanoon, posting such facts by obtaining the complete text of the ruling from the High Court website.

He said that there are no rules governing such actions.

Justice Mustaque then stated that some cases receive more public attention than others due to the parties involved. As a result, he questioned Andrew if it would be appropriate to allow just the verdicts in cases involving select well-known persons to be made public, rather than those of others.

The attorney answered that there should be a suitable procedural norm governing the same, and that this was critical even under Article 21.

He emphasised that privacy would not be compromised merely because the individual was in a public environment, and hence there should be a procedure/mechanism by which public papers might be distributed to a private participant, such as Indian Kanoon.

“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”.

Senior Advocate Sajan Poovayya argued for Google LLC that once a material is placed in the public domain, i.e., the initial publishing (through the High Court website), there is an inherent constitutional right that such things are accessible for assimilation and people must have access to it.

Thus, he maintained that an order requiring an internet intermediary to delete information from the internet could not be issued, especially as it falls beyond the scope of reasonable limits under Article 19(2).

Poovayya argued that the freedom to be forgotten cannot be used to “obliterate history.” He maintained that the aforementioned right is a minor aspect of “informational privacy,” which is an essential component of the right to privacy.

As a result, wherever it is asserted, the right to be forgotten exists only in the domain of informational privacy since there is no idea of the right to be forgotten outside of it.

He further said that the right to privacy cannot be used as a “preventive weapon” to prevent information from entering the public domain.

He argued that in our constitutional system, free expression is protected by Article 19(1)(a), and any restrictions on this freedom must fall within the reasonable limits set out in Article 19(2) of the Constitution.

Poovayya argued that in delicate instances when it is necessary to conceal the identities of the participants, the law imposes a statutory responsibility. Section 327 CrPC, for example, allows “in camera” hearings; Section 23 of the POCSO Act prohibits media from publishing the identity of a minor victim.

He admitted that in some situations, the right to information does not take precedence over the right to privacy. However, he stressed that, aside from these particular statutory limitations, the right to information is omnipresent in all other instances, and the right to privacy cannot be increased without any constraints.

To back up his claims, the attorney cited Supreme Court judgments in the cases of Justice KS Puttaswamy and Shreya Singhal.

Finally, 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 a context, when the intermediary is operating a single platform for the entire world, it becomes difficult for the intermediary to determine when they are in compliance with all the laws and when there is a breach-as one jurisdiction may allow it,

Advocate Kala T. Gopi, who was representing another petitioner who was charged with stalking a lady, stated that even if the case against him was dismissed, the facts of the occurrence could still be discovered on Google.

“The fact that the verdict is in the public domain is incorrect in and of itself,” the attorney contended.

The Counsel further argued that the right to privacy includes the ability to govern the distribution of information, and that it is critical that the individual understands the degree to which information about oneself is disseminated in the public domain.

The matter has been scheduled for a hearing on October 6, 2022.