Matthew Austin and Mark Collins analyse the recent High Court decision overturning a Circuit Court Order in relation to a person’s “right to be forgotten” concerning posts on the internet. The Data Protection Commissioner (the “DPC”) and Google appealed the Circuit Court decision finding in favour of Mark Savage, a former independent candidate in the 2014 local elections in north County Dublin.

Current “Right to be Forgotten”

The current “right to be forgotten” is based on the CJEU decision in the case of Google Spain v AEPD & Maria Costeja. In certain circumstances an individual has the right to have information about them removed from an internet search result carried out against their name. This is intended to balance the right to privacy and freedom of expression. The right is not only available to individuals where search results are inaccurate but also where the results are “inadequate, irrelevant or no longer relevant, or excessive....in light of the time that has elapsed”. The upcoming GDPR provides individuals with a more general right to erasure of personal data.

As part of Mr Savage’s campaign, he distributed an election leaflet to the public. A contributor to the website Reddit.com uploaded the election leaflet and created a discussion thread with the heading “North County Dublin’s Homophobic Candidate”. A number of contributors to the website discussed the leaflet which provoked a number of controversial comments. Mr Savage participated in the discussion forum objecting to be labelled a homophobe.

Mr Savage submitted a complaint to Google on 31 August 2014 that, from a search of his name on Google, he is referred to as a homophobe. By way of response, Google refused to remove the information and link from the search results on the basis that Mr Savage had willingly chose to run for public office and had become a public figure.

Mr Savage submitted a complaint to the DPC which was discussed above. In her ruling on 26 March 2015, the DPC carefully considered the list of common criteria for the handling of complaints by the European Data Protection Authorities in the wake of the Judgment in the Google Spain case. In particular, the DPC considered the following criteria to be of particular importance when dismissing Mr Savage’s claim:

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

The DPC dismissed Mr Savage’s claim as they considered the data was an expression of opinion about a public figure. Furthermore, Mr. Savage had published the election leaflet during his campaign for office, which was the subject of the Reddit post that Mr Savage took part in. It should be noted that the DPC do not consider the quality or otherwise of opinions.

Appeal to the Circuit Court

Mr Savage appealed the DPC’s decision to the Circuit Court. He accepted that the content of the Reddit discussion thread under the URL title constitutes freedom of expression and is in the public interest. However, Mr Savage contended that the URL asserts that he is a homophobe without any qualification or parenthesis and therefore it constitutes inaccurate date.

The Circuit Court considered the URL title in isolation and held that it was not clear from the URL title that the original Reddit user was expressing his/her opinion. The Circuit Court found that if such a URL title was to be one of opinion then one would expect it to be carried within quotation marks or parenthesis. The Circuit Court Judge held that the URL title should have been amended to clearly reflect an opinion.

The DPC and Google appealed the Circuit Court decision to the High Court.

The High Court held that when considering the Google Spain case, the Circuit Court Judge had a duty to consider the underlying article, the subject of the search. If the online discussion thread was considered, it would become clear that the original post was an expression of opinion. If the Circuit Court had considered the underlying discussion thread it could not have come to the conclusion that it was inaccurate data and factually incorrect, or an appearance of fact.

The Court found that to mandate a search engine company to place parenthesis around a URL heading would oblige it to engage in an editing process which is certainly not envisaged in the Google Spain decision. The responsibility placed on the Data Controller by that judgment is to delist the search once appropriate criteria are considered rather than edit it.

The High Court decision will be welcome to online search engines, as it avoids the requirement that they “edit” search results.

With the introduction of the General Data Protection Regulation on 25 May 2018 and the landmark Google Spain case, the issue of the “right to be forgotten” is likely to be considered by the Courts again.