The Kerala High Court in the recent case of Virginia Shylu v. Union of India observed that online search portals like Google could not claim that they are mere intermediaries with no power over search results.
The two-judge bench of Justices Shoba Annamma Eapen and A Muhamed Mustaque observed in a judgment on the right to be forgotten and how it applies to the publication of court judgments and precedents in the absence of specific legislation. Also, it is noted that while you can't dispute the court's ruling provisions in search results, that doesn't mean Google can't control the information that appears in search results.
Furthermore, it suggested that in the age of artificial intelligence (AI), Google might easily determine the nature of the information and delete it. Google is more than just a conduit. They are now trying to provide the best results for what a person is looking for online by using AI techniques to determine their needs and requirements online. We firmly believe that Google cannot position itself as merely an intermediary, allowing the contents to appear for the viewers or users in the digital platform, notwithstanding the Intermediary Rules and other regulations.
The bench elaborated that the Constitution protects the dissemination of legally permissible records as a part of Article 19(1)(a), the freedom of speech and expression. In the age of AI growth, Google has no trouble developing a tool to recognize certain data and delete it. If such is not done, the right to be forgotten claim would be seriously violated.
Even though several litigants were found not guilty in those cases, they filed several motions asking that their personal information be removed from Google searches and the legal information website Indian Kanoon. The group of petitioners included certain parties interested in marital and custody matters. The court made it clear that it is not investigating Google's obligation or culpability under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, for publishing decisions online.
It is unquestionably necessary to uphold the skilled counsel for Google's claim that they are merely an intermediary and are not responsible for the content or publishing of the judgements. The Court stated, “We are not here to determine compliance or noncompliance with the Intermediary Rules.” Instead, the Court stated that it is worried about the persistent character of internet material, which contravenes the right to be forgotten.
The right of a party based on the right to be forgotten may be violated by the publication of the judgements online and permitting the same to remain online permanently. The characteristics of a right that can be asserted as a right to be forgotten have already been mentioned. Such rights of the parties would undoubtedly be violated if the court's decisions were permitted to live forever online.
Accordingly, it was said that in the absence of legislation, litigants may have to approach the Court, and it may have to acknowledge their right and order the removal of such content on the internet as needed. The Court generally cannot strike a balance between the individuals' claimed interests and the information available in the digital domain for all time. The Court, without a doubt, would be allowed to decide after evaluating the relevant factors in a particular case whether to order the deletion of personal data or the removal of such data from digital space.
Refer to the Order for further details.