www.pdpjournals.com
The right to
be forgotten
— a decision
from the
Irish Circuit
Court
P R I V A C Y & D A T A P R O T E CT I O N
A
recent decision of the Irish
Circuit Court will mean that
the High Court in Ireland
will have the opportunity to
add to the evolving EU jurisprudence
involving the right to be forgotten later
in 2017.
The Circuit Court ruled in favour
of a politician and candidate in the
2014 local elections, Mark Savage,
who had made an application to Google
to remove a link to a post appearing
on Reddit, which in his view described
him as homophobic. This was the first
instance in which an Irish Court was
required to consider the decision of the
Court of Justice of the European Union
(‘CJEU’) in Google Spain SL & Google
Inc v Agencia Española de Protección
de Datos (AEPD) & Mario Costeja
González (‘Google Spain’). That case
established a ‘right to be forgotten’.
This article looks at the facts and issues
in the case.
Gavin Woods, Partner,
and Gemma O’Farrell
Associate, Arthur Cox,
discuss the implications
of the Irish Circuit
Court’s recent ruling on
the right to be forgotten
Google Spain revisited
In its seminal 2014 judgment in Google
Spain, the CJEU found that in certain
circumstances, an individual has the
right to have information about them
removed from the results of an internet
search carried out against their name.
The right attempts to balance the right
to privacy with the right of freedom of
expression. It was established through
the implicit right of erasure which can
found in the European Data Protection
Directive (95/46/EC) (‘the Directive’).
As a brief reminder of the circumstances of the case: Mr González had made
an application to Google Spain seeking
the removal of certain links to archived
newspaper announcements dating from
1998, which related to attachment
proceedings for the recovery of social
security debts he owed. These search
results appeared following a Google
search where his name was used as
a search term. Mr González argued
that as this information was now twelve
years old, that it was historic, irrelevant
and should be removed by Google.
Google refused to remove the link and
the Spanish Courts referred the question on the interpretation to be given to
certain provisions of the Directive to the
CJEU.
VOLUME 17, ISSUE 3
Article 12 of the Directive provides
individuals with certain rights in respect
of the processing of their personal data,
through a right of erasure. That right
permits the ‘rectification, erasure or
blocking of data, the processing of
which does not comply with the provisions of the Directive, in particular because of the incomplete or inaccurate
nature of the data.’
The CJEU ruled that search engine
providers like Google are ‘data controllers’ within the meaning of the Directive
and that it was irrelevant that Google
did not exercise control over the
personal data published on third party
websites. The CJEU determined that
the key issue was whether the relevant
data could be accessed following a
search using the person’s name.
The Court ruled that search engines
must comply with EU data privacy laws
and remove data that are ‘inadequate,
irrelevant, or no longer relevant’.
The Court stated that ‘the operator of
a search engine is liable to affect significantly the fundamental rights to privacy
and to the protection of personal data’.
The Court also emphasised that the
right to privacy must compete with the
right of internet users to have access to
information.
The potential implications for individuals
and search engines were well documented following the decision, and
the judgment was considered to
have extensive implications for internet
search engines. Recent statistics
suggest that Google has received
679,566 requests and considered
and evaluated 1,878,806 URLs. It has
removed 43.3% and refused 56.7%.
Following the decision, an Article 29
Working Group was established whose
task was to establish (non exhaustive)
criteria to be considered when a Data
Protection Authority is deciding whether
to de-list data held by a data controller.
Savage v Data Protection
Commissioner
The proceedings before the Irish Circuit
Court related to Mr Savage’s appeal
against a decision of the Irish Data
Protection Commissioner (‘DPC’),
who agreed with Google’s decision not
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P R I V A C Y & D A T A P R O T E CT I O N
(Continued from page 13)
to delist links responsive to a search
using Mr Savage’s name.
forum, the Commissioner noted that
Mr Savage had participated in the
online discussion and had posted
three separate entries. The Commissioner concluded that she was not
going to order the removal of the link.
Mr Savage appealed against this
decision on the basis that the Irish
Data Protection Acts
1988 and 2003 (‘DPAs’)
provide that an individual
is entitled to have recti“If the
fied or, where appropridetermination
ate, blocked or erased,
any data to which there
of the Circuit
has been a contravenCourt judge is
tion by a data controller.
The URL appearing on
Reddit.com stated ‘Mark
Savage North County
Dublins Homophobic
Candidate’ beneath
which a public thread
discussed the content.
The link appeared following a search result
when Mr Savage’s name
was entered into the
search engine.
upheld, it is
likely to
encourage
Irish users to
exercise and if
necessary,
seek to
vindicate their
right to be
forgotten
before the
Irish High
Court.”
Google refused to
remove the link on
the basis that Mr Savage
was a public figure who
had been a candidate in
the recent local election,
and who had engaged
publicly in a debate on
the issue. Google considered that Mr Savage’s views
related to his public persona rather
than his private life, and refused to
remove the link.
The decision of the DPC
Upon appeal, the Commissioner
agreed that Mr Savage was a public
figure and also that the data were
relevant and accurate. She stated
that ‘accurate means accurate as to
a matter of fact and this link remains
accurate in that it represents the opinion expressed of you by a user of the
relevant forum.’
The Commissioner declined to
comment on the quality of the opinion
and stated that it was clear that the
data reflected an individual personal
opinion and not a verified fact. With
respect to the URL and discussion
The Appeal to
the Circuit Court
Mr Savage appealed
to the Circuit Court and
a decision was handed
down in October 2016.
He had argued that
the search result was
inaccurate and should
be removed, as the
URL defined him as
a homophobe without
any qualification
or parenthesis. Mr
Savage argued that a
user having searched
his name on Google
would form the view
that he had run in the
local election as a homophobic candidate.
Whilst he agreed
that the commentary
beneath the URL
constituted freedom
of expression in the
public interest, he stated that the statement
should be removed where it was inaccurate and had been asserted without
qualification or disclaimer. Mr Savage
also stated that the URL would impact
on his employment prospects and
future plans.
In submissions before the Court, the
DPC said if the link was inaccurate,
out of date, excessive or irrelevant, Mr
Savage could have sought its removal
as per the decision in Google Spain.
However, the key issue of the case
turned on the accuracy of the data.
Section 2(1) of the DPAs requires that
data are kept accurate and the DPC
submitted that as the URL ‘accurately
represented the opinion of the user
who posted it’, the data were accurate
and as such did not require removal.
The Commissioner said that due to
the nature of online forums, opinions
are traded and views shared and
therefore ‘anything represented on it
VOLUME 17, ISSUE 3
is unlikely to be qualified as to its factual accuracy but rather represents a
perception of a particular online user.’
In the Commissioner’s view, the
online user was ‘expressing a personal opinion on the appellant based on
election material…rather than making
a finding of fact.’ Coupled with this
was the Commissioner’s view that
‘any individual user of the internet
seeking out facts in relation to any
topic is unlikely to consult an online
discussion forum such as Reddit
as a source of verified facts.’
The Circuit Court judgment
In considering the submissions
made by the parties, the Court cited
the criteria of the EU’s Article 29
Working Group in assessing whether
the data in question were accurate
and said that data protection authorities ‘will be more likely to consider that
delisting of a search result is appropriate where there is inaccuracy as to a
matter of fact, and where this presents
an inaccurate, inadequate or misleading impression of an individual.’
The Court found that the URL was
not accurate and ‘that if one were
to simply consider the URL title,
and apply the reasoning of the DPC,
it is not accurate by virtue of the fact
that it is simply not clear.’ The Court
reached this decision notwithstanding
that ‘upon full consideration of the
entire thread…it would become clear
that the original poster is expressing
his or her opinion.’
The decision of the Court turned on
the interpretation of ‘accurate’ and
how that impacted on the content
contained in the URL. The Court’s
concern was that the interpretation
given by the DPC left open ‘the possibility of elevating a statement of opinion from the body of any such discussion forum to the status of accurate
data, by merely accurately transposing the data from the body of the
posting or thread to a URL heading,
in the absence of any indication that
it is actually requoting such a view.’
In the Court’s view, the addition of
quotation marks or parenthesis would
have elevated the title from one of
perceived fact to one of opinion.
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VOLUME 17, ISSUE 3
Absent such an amendment, it was
not considered to constitute ‘accurate
data’. It was on this basis that the
Court concluded that the DPC had
made an error and that the fundamental rights and interests of Mr Savage
had been prejudiced.
Future of the right to be
forgotten
From May 2018, the General Data
Protection Regulation will put the right
to be forgotten on a statutory footing,
ensuring that it is no longer a right
implicit in the right to erasure.
Article 17 of the Regulation states:
“The data subject shall have the
right to obtain from the controller
the erasure of personal data relating
to them and the abstention from
further dissemination of such data”.
The Regulation sets out prescribed
positive obligations on data controllers
and large fines for failures to comply
with the Regulation.
As is the case under Articles 9 and 12
of the existing Directive, the right to be
forgotten in the GDPR is not absolute
and is subject to certain exemptions
or derogations. These include ‘the
right of freedom of expression and
information’ (Article 17(3)(a)) and Article 23 which permits Member States
to pass laws to restrict certain user
rights where it is necessary and proportionate (for example, public security, protection of life and investigation
of crime).
Conclusions
The High Court’s appeal of the Circuit
Court decision is currently listed for
hearing in May 2017. It is understood
that Google will be an active participant in the appeal.
The determination of these issues
by the Irish High Court will be keenly
awaited by interested parties in Ireland and beyond. If the finding of the
Circuit Court judge is upheld, it is likely to encourage Irish users to exercise
— and if necessary seek to vindicate
— their right to be forgotten before the
Irish High Court.
Gavin Woods and
Gemma O’Farrell
Arthur Cox
[email protected]
[email protected]