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The Right To Be Forgotten - Know Your Internet Rights (Part 1)

22-December-2015
22-December-2015 16:59
in Commercial and Chancery
by Lawrence Power

The right for individuals to be “forgotten” from the internet has been prevalent since the European Union’s (“EU”) 1995 Data Protection Directive (“the Directive”). Article 12 of the Directive compels every Member State to allow every citizen the right to obtain from internet search engine operators the “rectification, erasure or blocking” of data relating to that person “because of the incomplete or inaccurate nature of the data”.

 

In 2010, this point of European law drew a referral of questions from a Spanish Court to the Court of Justice of the European Union (“ECJ”). Mario Costeja Gonzalez (“Mr. Gonzalez”) complained to the local Spanish Data Protection Agency (“AEPD”) that when his name was typed into Google, the list of links would display two pages of a report in national newspaper La Vanguardia Ediciones SL. These reports announced that a real estate auction had been organised following attachment proceedings for the recovery of social security debts owed by Mr. Gonzalez. However, Mr. Gonzalez could prove that the proceedings had been resolved for a considerable time and asserted the links were now irrelevant. Thus, he asked AEPD to compel La Vanguardia to remove the offending articles from their archives as well as asking Google to remove the links from their search engine results whenever his name was entered into it.

 

AEPD refused to compel La Vanguardia to do so. In their view, La Vanguardia’s publication was legal. They did, however, request Google Spain and Google Inc. to remove the data from their index and make it inaccessible. Google then brought two actions to the Spanish court seeking the annulment of AEPD’s decision. The Spanish court referred their questions to the ECJ.

 

On 13 May 2014, the ECJ ruled,

 

  1. Search engines are “controllers” of data, so that Article 12 of the 1995 Directive is applicable to the likes of Google.
  2. EU rules are applicable to controllers, if they have a branch or subsidiary in a Member State, which promotes the selling of advertising space offered by the search engine; and
  3. There is a right to be “forgotten” as long as the information is inaccurate, inadequate, irrelevant or excessive. It was reiterated that this right is qualified and must be balanced with the interests of freedom of the press and the right of the public to have access to the information.

 

Therefore, Google Spain and Google Inc. were required to remove the data from their index and make it inaccessible. It was important that Mr. Gonzalez had ensured the matter had been resolved 16 years at the time of the ECJ’s judgment.

 

However, Google may still refuse to remove links from their search engine if they disagree with the individual’s grounds for removal. Recently, in 2015, Malcolm Edwards in the UK was unsuccessful in compelling certain news publications and Google removing stories regarding his imprisonment for conspiracy to cheat the public revenue. He sought to invoke the right to be forgotten under the Data Protection Act 1998, the Directive and/or Article 8 of the Human Rights Act 1998, protecting the right to respect for private and family life, along with relying on last year’s ECJ ruling.

 

The BBC’s evidence from their director of editorial policy and standards, David Jordan, that the BBC are a “library newspaper archive” was important in allowing them to publish certain stories – as long as it is done so lawfully. Further, Mr. Edwards was unsuccessful because he was sentenced to 10 years imprisonment in 2007. It was argued by the media organisations therefore that his continued incarceration for his offences could not make those offences historical.

 

It is clear that there is a right for certain negative information to be removed from search engines. From the examples mentioned above however, newspapers freedom of expression are strongly considered and can be favoured, as long as they are not publishing defamatory material. Our view is that it is recommended that before any request to a search engine is made to remove ostensibly negative information, the individual concerned must consider the accuracy, adequacy and relevance of the same. Whether the search engine will consider removal is determined on a case by case basis. Expect disputes as parties seek to clean up their image on the internet.

© 2015 Chambers of Lawrence Power, 4 King’s Bench Walk, Temple, London, EC4Y 7DL. Tel: 020 7822 8822. www.4kbw.net  email jr@4kbw.net