The first ‘right to be forgotten’ case in the Irish courts came before Dublin Circuit Civil Court in May 2016. Mark Savage, a former local election candidate, challenged a decision of the Data Protection Commissioner (“DPC”) which supported Google’s refusal to remove a link referring to him as “Dublin's homophobic candidate”. The Circuit Court overturned the DPC’s decision, and the case is now on appeal to the High Court. We consider the case.

What is the ‘right to be forgotten’?

The concept of the ‘right to be forgotten’ was created by the EU’s highest court, the CJEU, in the Google Spain case. Previously, individuals had the right, in certain circumstances, to request the deletion of their personal data. However, the court found an additional, specific right in respect of personal data processed by search engine providers, such as Google.

In short, the ‘right to be forgotten’ allows an individual to ask search engines to ‘delist’ certain search results which appear against that individual’s name. The right is intended to apply in cases where the results returned are inaccurate, inadequate, irrelevant or no longer relevant, or excessive. However, this right is subject to certain restrictions, particularly where there is a public interest in the information.

The CJEU recently handed down a decision on the right to be forgotten in Manni, finding that information in the company register can only be removed in circumstances where it is “exceptionally justified”. We will consider this case separately.

Background

In 2014, Mark Savage complained to the DPC that ‘Reddit.com’ contained the URL: “Mark Savage North County Dublin’s Homophobic Candidate”. The web page appeared in Google’s search results when a search was carried out against Mr Savage’s name. Mr Savage had run as a candidate for public office as Councillor in the 2014 local elections, with election literature referring to “Gay Perverts cavorting in flagrante on the beach in broad daylight". Mr Savage argued that the Reddit page presented inaccurate information as it presented him as a homophobe without any qualification. He asked Google to delist the Reddit search result.

Google’s decision

Google refused to take down this link. It maintained that, as a public figure, Mr Savage had joined a debate on matters relating to the gay community. Google added that, as this information related to Mr Savage’s public persona, it was in the public interest that internet users have access to his political and cultural views.

The DPC’s decision

Mr Savage appealed Google’s refusal to the DPC, who concluded on 26 March 2015 that there had been no breach of his rights under Irish data protection law. The DPC took the view that the inclusion by Google of the link could not be considered prejudicial to Mr Savage’s fundamental rights and freedoms. In particular, the DPC took the following criteria into consideration:

  1. Does the data subject play a role in public life? Is the data subject a public figure?
  2. Is the data accurate?
  3. Is the data relevant and not excessive?
  4. Is it clear that the data reflects an individual’s personal opinion, or does it appear to be verified fact?
  5. In what context was the information published? Was the content voluntarily made public by the data subject?

The DPC indicated that the text of the URL expressed the opinion of the poster and was not expressed as being factually accurate. The DPC added that the public interest and freedom of expression outweighed the right to privacy in this case.

Circuit Court

Mr Savage appealed the DPC’s decision to the Circuit Court. He argued that users of the internet are increasingly reliant on it for ascertaining information and the need for accuracy regarding factual information is of “paramount importance”. He added that a user would form the view that he had run in the local elections as a homophobic candidate, due to how the URL title was displayed by Google. He argued that the URL title had the appearance of a verified fact, without any qualification, which was inaccurate, excessive and inadequate.

The court found that the decision of the DPC “fell into error” on the basis that it was “far from clear” that the URL title was the expression of the poster’s opinion. While accepting that the procedures followed by the DPC were appropriate, the court disagreed with the findings arrived at and took the view that Mr Savage’s fundamental rights and interests had been prejudiced. The court decided that the balance of rights fell in favour of Mr Savage, despite that he was a public figure.

Analysis

The case is now on appeal to the High Court and is listed for hearing in May 2017. It remains to be seen whether the decision of the Circuit Court will be overturned.

While the DPC could not consider the merits around any allegation of defamation, the key focus was whether the text of the URL was fact or opinion. The DPC formed the view that it was an expression of a personal opinion, rather than a finding of fact, because Reddit was understood as not being a source of verified facts. However, the court supported Mr Savage’s view that it was not immediately clear that this was the case. Therefore, in the court’s view, without any quotation marks or parenthesis indicating that the URL was re-quoting a view, it bore the appearance of a verified fact.

Interestingly, in deciding the “accuracy” of the statement, the High Court appeal may come down to a determination of whether the average user understands that Reddit is not “a source of verified fact” and that Reddit URLs are determined by the title of a user’s post.