Google cannot claim to be content-blind intermediary; can use AI to identify, remove private data: Kerala High Court

The Kerala High Court on Thursday opined that search engines like Google cannot claim to be mere intermediaries with no control over the content that appears in search results. [Virginia Shylu v. Union of India].A Division Bench of Justices A Muahmed Mustaque and Shoba Annamma Eapen made the observation in a judgment on the right to be forgotten and the manner in which it applies to publication of court judgments and proceedings, in the absence of any specific legislation.It observed that even though making court judgments available in search results cannot be faulted, it cannot be said that Google has no control over the information that gets thrown up in search results. "..we cannot hold that Google is content blind to the publications made online; can they allow any prohibited nature of content to appear online? For example, paedophilic content," the Bench said..Moreover, it opined that that in the era of Artificial Intelligence (AI), 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," the Bench elaborated..The Court issued the judgment on a batch of pleas moved by certain litigants seeking erasure of their personal details that were appearing on Google search and on legal resource website Indian Kanoon, despite their acquittal in the those cases. Some of the petitioners in the batch of pleas were involved in matrimonial and custody disputes..It clarified that it is not looking at the responsibility or liability of Google for publishing judgments online as per the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021."The contention by the learned counsel for Google that they are only an intermediary and they are not liable for the contents or publication of the judgments, no doubt, the said contention has to be upheld. We are not here to decide upon compliance or noncompliance with the Intermediary Rules," the Court said.Rather, the Court said that it is concerned with the eternal nature of information online, which goes against the right to be forgotten."The publication of the judgments online and allowing the same to remain online forever may infringe upon the right of a party based on the right to be forgotten. We have already adverted to the nature of a right that can be claimed as a right to be forgotten. If the judgments of the Court are allowed to remain online for eternity, certainly, it would invade such rights of the parties."Therefore, it said that in the absence of legislation, litigants may have to approach the Court and it may have to recognise their right and direct removal of such content available online on a case-to-case basis."The Court cannot generally balance the interest claimed by the individuals and the information available in the digital domain for eternity. The Court, no doubt, would be able to form an opinion after adverting to the attending circumstances of a particular case to order the removal of personal data or erasure of such data from digital space after considering the factors relating to such cases.".Read more about the judgment here..[Read Judgment]