Why a Sri Lankan Supreme Court judge has moved the Karnataka High Court against Google

Who is Justice Nawaz?

According to his petition, before being elevated to the bench of the Sri Lankan Supreme Court, Justice Nawaz served as a Deputy Solicitor General in the Sri Lankan Attorney General’s office.

It adds that during this tenure, he rendered certain legal opinions that allegedly made him the target of a “malicious and wholly unjustified campaign” born out of political vendetta, which culminated in a criminal case being filed against him. The petition notes that this case was eventually “unequivocally quashed” by the Sri Lankan Supreme Court, after which he was elevated as a judge of the Sri Lankan Court of Appeal and subsequently to the Supreme Court.

However, his grievance stems from the fact that despite his exoneration, four news articles published by Sri Lankan news portals Colombo Telegraph and Lanka e News – one in 2015 and three in 2020 – continue surfacing after being searched on Google. These articles brand him a “dirty judge” and accuse him of corruption and fraud.

Justice Nawaz argues that the continued circulation subjects him to a perpetual media trial, causing incalculable harm to his personal and professional reputation globally.

What is the ‘Right to be Forgotten’?

To seek the removal of these articles and their search engine hyperlinks, Justice Nawaz has invoked the ‘right to be forgotten’.

This is a legal concept originating in European data protection laws and gradually gaining recognition in Indian courts, which allows individuals to request the removal of irrelevant, outdated, or false personal information from search engines and public domains. The underlying principle is that a person should not be permanently stigmatised by past events, especially when allegations have been legally disproved.

His petition argues that the enduring digital footprints of these articles, long after the facts have been clarified, are a “profound affront to an individual’s right to privacy and their right to move forward without the perpetual shadow of unjust public scrutiny.”

Why approach an Indian High Court?

The most intriguing aspect of this lawsuit is the choice of judicial forum. How does an Indian High Court have the jurisdiction to adjudicate a dispute involving a Sri Lankan national and Sri Lankan news websites?

Justice Nawaz’s legal team, led by the Delhi and Chennai-based advocate Prabhakaran Ramachandran, has built this jurisdictional claim on two main pillars: the universal application of the right to life under the Indian Constitution and Google’s physical presence in Bengaluru.

First, the petition relies on Article 21 of the Indian Constitution, which guarantees the right to protection of life and personal liberty, and states that the Supreme Court of India has consistently ruled that the right to reputation and the right to privacy are inseparable facets of Article 21.

The petition points out that the protection afforded under Article 21 “is not restricted to Indian citizens alone but extends to all individuals, including foreigners.” Therefore, Justice Nawaz argues, he is entitled to seek legal relief in India for the harm done to his dignity and reputation.

Second, to establish territorial jurisdiction in Karnataka, the petition refers to the search engine hosting the links to the alleged defamatory content. “As Google’s Indian headquarters are situated in Bengaluru, Karnataka, this jurisdiction stands as the appropriate forum for addressing the legal ramifications of the defamatory content at issue,” it states. The petition argues that the internet is a borderless space and legal remedies for online defamation must transcend national boundaries.

Justice Nawaz also argues that he did not file a standard civil defamation lawsuit in his home country because, as a sitting judge of the Sri Lankan Supreme Court, he is ethically prohibited from filing a lawsuit there. It would conflict with a well-established principle of natural justice – that one cannot be a judge in one’s own cause.

The Karnataka High Court will next hear the matter on March 16.