‘There is an article about me online that I disagree with – what are my options?’
There are a number of civil remedies available should you find yourself the subject of unwanted media publications, these are typically:
- commencing a claim for defamation and/or one of the other relevant tortious causes of action
- writing to each publisher separately citing your rights as a data subject under GDPR/the Data Protection Act 2018 (“DPA”) and/or submitting requests directly to search engines to ask for the de-listing of relevant web pages
- complaining about the conduct of regulated publishers to the Independent Press Standards Organisation (“IPSO”).
The applicability of each of the above remedies is circumstance dependent, they are not however mutually exclusive and a combination of them may be required for maximum effect.
Our series of three briefings deals with each of these in turn (click here for Part 1).
II. Data Protection Rights
In both UK and EU law, organisations that handle personal data are required, amongst other obligations, to ensure that a data subject’s rights are enforceable. Principal amongst these rights are:
- The right to erasure (GDPR Article 17 and DPA section 47) – the right to request that your personal data is erased by the processing entity
- The right to rectification (GDPR Article 16 and DPA section 46) – the right to request correction/completion of incomplete or otherwise inaccurate data (this would be a suitable option where you do not object to the article itself, but simply inaccuracies within it).
On receipt of a data subject request, data processors (in this instance the publisher of the offending content) have one calendar month to either comply with the request or reply substantively setting out their grounds for refusal. The judgment of the European Court of Justice in Google v Spain1 makes clear that, in considering a request for erasure, it is incumbent on the data processor to conduct a comprehensive balancing exercise between the rights of the individual data subject and those of the publisher. Any refusal of a data subject’s request must be grounded in a proper assessment of those competing interests.
Data subject requests under options (a) or (b) above may be made to two sources, the publisher(s) themselves and/or search engines.
If the publisher and/or search engine you have corresponded with does not handle the matter adequately or within the mandated timeframe, you may also consider submitting a complaint to the Information Commissioner’s Office (“ICO”). The ICO has broad powers and may intervene in instances where they deem a data subject’s request meritorious.
On the other hand, if the publisher complies with a request to erase your personal data, the article should be deleted from the internet and further circulation prevented. In contrast, if a search engine complied with your request for erasure, then the article(s) would not cease to exist on the internet they would however be de-listed from search engine results, meaning that they would no longer be accessible through search terms.
Requesting the de-listing of material through search engines can be particularly useful in instances where the publication you are dealing with is not a mainstream newspaper, for example anonymous blogs or forums. In some cases writing directly to the operators/authors of such publications, who can often be difficult to trace in the first instance and many of whom advertise not being intimidated by legal action as a point of pride, may serve only to spawn further adverse content and compound matters. Conversely, securing the removal of these links through search engines may make these webpages effectively inaccessible, thereby neutralising future adverse publicity caused by that publication.
There are multiple options available for seeking redress against publications that infringe your rights. The optimal outcome in your dispute may be achievable by a combination of the options outlined in this series or a single remedy alone, however each dispute will be unique and may require the correctly timed use of several remedies as part of tactically nuanced approach.