Google Llc vs Jomini Samuel on 30 March, 2023

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Kerala High Court

Google Llc vs Jomini Samuel on 30 March, 2023

These review petitions are filed by Google Incorporation, one of the respondents in the writ petitions. They have come up with this review to expunge certain observations in the judgment. This Court dealt with an issue regarding judicial information policy in the judgment under review. The Court was called upon to decide the issue in the context of publication of judgments online. While elucidating on the point of law on the rights of the litigants, premised on the right to be forgotten, we stated that a litigant cannot claim RP.No.107/2023 in WP(C).No.6687/2017 and connected cases -:2:- such a right in relation to records of recent origin and further observed that these rights can be claimed by them in future. Recognising it is a fundamental right, this Court observed that Google cannot ignore those fundamental rights and that the safe harbour principles available to them as intermediaries cannot be a defence to honour the fundamental rights of citizens. It was also observed that Google can, with the aid of AI tools, identify such data and remove it from online.

2. The learned Senior Counsel appearing for Google submits that this Court having found that Google is an intermediary, so far as it relates to publication of the judgment, in para.63 of the judgment further observed that Google cannot claim itself as a mere intermediary which is contradictory to the earlier observation. We make it clear that such observation was made only with RP.No.107/2023 in WP(C).No.6687/2017 and connected cases -:3:- reference to the claim based on fundamental rights and not with reference to any normal activities of Google referable to Information Technology Act and the relevant Rules.

3. We also note in this context, Rule 3(d) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ("IT Rules 2021" for short). Rule 3(d) reads thus:

(d) an intermediary, on whose computer resource the information is stored, hosted or published, upon receiving actual knowledge in the form of an order by a court of competent jurisdiction or on being notified by the Appropriate Government or its agency under clause (b) of sub-section (3) of section 79 of the Act, shall not host, store or publish any unlawful information, which is prohibited under any law for the time being in force in relation to the interest of the sovereignty and integrity of India; security of the State; friendly relations with foreign States; public order; decency or morality; in relation to contempt of court; defamation; incitement to an offence relating to the above, or any information which is prohibited under any law for the time being in force:

Provided that any notification made by the Appropriate Government or its agency in relation to any information which is prohibited under any law for the time being in force shall be issued by an authorised agency, as may be notified by the Appropriate Government:

RP.No.107/2023 in WP(C).No.6687/2017 and connected cases -:4:- Provided further that if any such information is hosted, stored or published, the intermediary shall remove or disable access to that information, as early as possible, but in no case later than thirty-six hours from the receipt of the court order or on being notified by the Appropriate Government or its agency, as the case may be:

Provided also that the removal or disabling of access to any information, data or communication link within the categories of information specified under this clause, under clause (b) on a voluntary basis, or on the basis of grievances received under sub-rule (2) by such intermediary, shall not amount to a violation of the conditions of clauses (a) or (b) of sub-section (2) of section 79 of the Act;

4. 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 further observation that Google can deploy AI tools to identify and locate data can be construed as only a suggestion and in no way would demand Google to deploy AI tools to identify such data. These are all matters which will have to be decided in future in the absence of any legislation, in appropriate litigation. These observations having RP.No.107/2023 in WP(C).No.6687/2017 and connected cases -:5:- no consequences, we find no reason to expunge the observations from the judgment. Review petitions are accordingly disposed of.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE Sd/-

SHOBA ANNAMMA EAPEN, JUDGE ms

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Kerala High Court