Kerala High Court in Right to be Forgotten Case: Merely a Suggestion Given to Google to Deploy AI Tools to Identify and Remove Data

Kerala High Court in Right to be Forgotten Case: Merely a Suggestion Given to Google to Deploy AI Tools to Identify and Remove Data

The Kerala High Court while refusing to expunge certain remarks from its ‘Right to be Forgotten’ judgment, whereby it held that Google is not ‘content blind’ and it cannot shirk liability to remove judgments and content disclosing personal details of parties, clarified that it was a mere suggestion in the observation that Google can deploy AI tools to identify and locate data and in no way would demand Google to deploy AI tools to identify such data.

The division bench of Justices A. Muhamed Mustaque and Shoba Annamma Eapen, were hearing the review petition filed by the tech-giant Google LLC.

Google was 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.

In the original suit, the Court was concerned 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 apropos to that observed, 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.

However, the Court had 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.”

Google was seeking to expunge the said observation in the judgment. The Counsels appearing for Google, argued that 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.

Therefore, the Court 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 related 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 were not contrary to the statutory provisions.

The bench further stated that it had merely 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.

Accordingly, the Court disposed the review petitions.