Here is why Google opposed Sri Lankan judge's plea in Karnataka High Court for online content takedown

Google on Wednesday opposed the defamation plea filed by Sri Lankan Justice AHMD Nawaz before the Karnataka High Court for the removal of online content posted by certain Sri Lankan media outlets [AHMD Nawaz v Ministry of Electronics & Information Technology].

Google argued that Justice Nawaz could not cite the right to be forgotten (right of persons to seek deletion of their information from online platforms in certain circumstances) since this right is not expressly part of the law governing digital data in India.

Advocate Manu Prabhakar Kulkarni, representing Google, recounted that the right to be forgotten claimed by Justice Nawaz was previously included in the Digital Personal Data Protection Bill.

However, it is not expressly recognised in the final version of the law that was enacted, namely the Digital Personal Data Protection Act, 2023 (DPDP). He contended that the parliament chose not to confer this right upon citizens, adding that the right to be forgotten itself has been forgotten.

He also contended that Justice Nawaz, being a Sri Lankan citizen, cannot seek the enforcement of fundamental rights under the Indian Constitution since such rights only apply to Indian citizens or those residing within Indian territory.

He invoked the doctrine of forum non conveniens (under which courts can refuse to hear cases on the ground that there is a more convenient, alternative forum available) to argue that the Court may find it inconvenient to decide on a case involving Sri Lankan affairs.

Google's counsel also contended that Justice Nawaz had made the Union Ministry of Electronics and Information Technology (MEITY) a party to his plea only so that he could directly approach a Constitutional Court (High Court), without first going to a civil court.

⁠Even if there is a genuine grievance, it should first go before a civil court and not before a Constitutional court like the High Court, he maintained.

Justice Nawaz's counsel countered that a civil court suit would not be appropriate as he is not seeking any damages but is only seeking a takedown of defamatory content.

He maintained that the Sri Lankan judge could also invoke Article 21 rights, since the term "person" in this provision would extend to foreigners as well, not just citizens.

Justice Nawaz's counsel went on to submit that since Google has an office in India, it was easier for him to approach a court in India to seek the takedown of the defamatory online content.

The lawyer further argued that Justice Nawaz is not alien to India, having visited India in an academic capacity as a guest faculty in Lovely Professional University and as a participant in conferences.

He added that since Justice Nawaz was part of the Sri Lankan judiciary, he could not approach Sri Lankan courts to order the takedown of content against him as it may amount to being a judge in one's own case.

An Indian court was approached since it is a neutral jurisdiction, he contended.

Justice Sachin Shankar Magadum will hear further arguments in the matter on April 28.

Justice Nawaz is a sitting judge of the Sri Lankan Supreme Court. In his petition before the Karnataka High Court, he has sought the takedown of four articles - one 2015 article published in the Colombo Telegraph, two others published by the outlet in 2020, and a fourth one published in 2020 by Lankae News.

According to the plea, these articles were published while he was serving as the President of the Court of Appeal of Sri Lanka. Despite being cleared for elevation to the Sri Lankan Supreme Court, he alleged that the misleading and false articles continue to circulate.

His plea stated that this continues harming not just his reputation but also the judiciary's sanctity.

The High Court sought Google's response in the matter last month. At the time, the Court also issued notice to two Sri Lankan news outlets accused of posting defamatory content against Justice Nawaz. The two news outlets are Colombo Telegraph, reportedly run by exiled Sri Lankan journalists, and Lanka e-News.