In this case, X is an undertaking that had recently been associated with money laundering and drugs related crimes in a news article. A google search of X’s full name led to this news article. X argued that since the accusations were not based on proven facts and considering the fact that the case had already been dropped, the news article contained incorrect, irrelevant and unacceptable information. Subsequently, X argued that the news article was portraying an unjust negative image of X to an extent that X was a victim of (an attempt to) character assassination. X therefore requested Google Inc. to remove links between his full name and the websites that showed this news article. Google Inc. refused to comply with this request and argued that the search results led to websites containing information that is relevant, up to date, within the interest of the general public, and not excessive. Following this refusal, X initiated legal proceedings.
With reference to the Google/Costeja case, in which the European Court of Justice (EU CoJ) held that the ‘right to be forgotten’ (article 40.1 of the Dutch Data Protection Act) in principle prevails over the economic interest of the search engine and over the interest of the general public in having access to the information requested to be removed. It further clarified that the only exception hereto is “if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his (fundamental) right to be forgotten is justified by the preponderant interest of the general public in having access to the information in question.”
What seems to be in accordance with this explanation given by the EU CoJ to the right to be forgotten, the Court of First Instance in Amsterdam (Court) ordered Google on April 19 2017 to remove all links between X’s full name and the websites that showed the news article at subject. The Court held that the mere fact that X owns a business does not make him a public figure. Therefore, the case of X does not call for an exception to the right to be forgotten as there is no preponderant interest of the general public in having access to the news article. It is unclear at the moment whether this case will be taken to a higher court or not.
Interesting to note is that in another recent case, the Court of Appeal in Amsterdam rejected an individual’s claim to delete the search engine results relating to his criminal convictions with the argument that ‘the general public generally has a large interest in having access to information regarding serious offences’. The individual in this case is a subject of a popular tv-show. One could therefore argue that the data subject in this case concerns a public figure and that therefore, the right to be forgotten should not prevail over the interest of the general public. The Dutch Supreme Court however held that the Court of Appeal failed to make clear why in this particular case, the right to be forgotten should not prevail over the interest of the general public. For that reason, the Dutch Supreme Court referred the case back to the Court of appeal.
In light of these different judgments, it will be interesting to see how the balancing act between the right to be forgotten and the interest of the general public will be further established in new rulings.