Right to be forgotten: Kerala High Court refuses to expunge suggestion to Google to use AI tools to identify, remove private data

The Kerala High Court recently refused to expunge an observation in its 2022 judgment on the right to be forgotten in which it had suggested that Goggle can use Artificial Intelligence (AI) tools to identify and remove private information from court documents and judgments [Google INC v XXX & Ors.]..A division bench of Justices A Muhamed Mustaque and Shoba Annamma Eapen disposed of the petition filed by Google INC seeking to review the said judgment. The search engine platform was also aggrieved by another observation in it which said that Google cannot claim to be a mere content-blind intermediary and shirk all responsibility when it comes to right to privacy. The division bench clarified that this observation was made only with reference to the fundamental fights and not with reference to any normal activities of Google referable to Information Technology Act (IT Act) and the relevant Rules.After careful examination of the IT Act, the bench also noted that even Rule 3 (d) of the IT Act requires Google to remove contents based on a court order.“The above rule also requires Google to remove contents based on a Court order. In light of the above, it is clear that our observations do not run contrary to the statutory scheme,” the bench observed.Regarding the court’s observation in the said judgment that “Google can deploy AI (Artificial Intelligence) tools to identify and locate data”, the Court said that it can be construed as only a suggestion and not a demand.“These are all matters which will have to be decided in future in the absence of any legislation, inappropriate litigation,” the bench clarified. .The Court passed the right to be forgotten judgment on December 22, 2022, which dealt with the manner in which the right applies to publication of court judgments and proceedings, in the absence of any specific legislation.The judgment was delivered on a batch of pleas moved by certain litigants seeking the erasure of their personal details that were appearing on Google search and on the legal resource website Indian Kanoon, despite their acquittal in those cases. Some of the petitioners in the batch of pleas were involved in matrimonial and custody disputes.The Court had 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 Court had 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 judgment stated.It is these observations that prompted Google INC to file the present review petition.However, the Court disposed of the review petition stating it finds no reason to expunge the observations from the said judgments..The petitioner was represented by advocate CM Andrews.The respondents were represented by advocates Adarsh Mathew, Santhosh Mathew, BG Harindranath, Manu S (DSG of India), and Suvin R Menon (CGC)..[Read Order]