The High Court has ruled in favour of the Office of the Data Protection Commissioner (ODPC) and Google Ireland Inc. (Google) and overturned Ireland's first judgment on the 'right to be forgotten' delivered by the Circuit Court in December 2016.

What is the Right to be Forgotten?

The 'right to be forgotten' is a legal remedy permitting, among other things, individuals to request that their personal data are delisted so that they no longer appear in results generated by search engines.

The right is likely to apply in cases where the results returned by search engines are inaccurate, excessive or no longer relevant.

The right was first recognized in the seminal 'Google Spain' decision.

Background to Proceedings

In 2014, the plaintiff lodged a complaint with the ODPC requesting the delisting of certain details posted about him on Reddit, an online discussion forum.

The link to the post in question contained language that referred to the plaintiff as "North County Dublin's Homophobic Candidate" and appeared in Google’s search results when a search was carried out against the plaintiff's name.

The plaintiff argued that the link to the Reddit page breached the Data Protection Acts 1998 and 2003 (the DP Acts) on the basis that it contained inaccurate information and presented him as a homophobe without any qualification. In particular, while the plaintiff accepted that the Reddit thread constituted free speech, he argued that the lack of qualification or parenthesis gave credence to the assertions contained in the Reddit thread.

The ODPC concluded that there had been no contravention of the DP Acts and was of the view that the Reddit user was expressing a personal opinion on the plaintiff based on the election material rather than a finding of fact. Further, the ODPC held that any user seeking out facts on any topic is unlikely to consult an online discussion forum such as Reddit as a source of verified facts.

Circuit Court Judgment

The plaintiff appealed the ODPC decision to the Circuit Court which, as previously reported by us here, ruled in the plaintiff's favour finding that it was likely that internet users would consult an online discussion forum such as Reddit as a source of verified facts.

The Circuit Court ordered that the information contained in the link to the Reddit thread be edited and presented in search results such that the comments appeared as opinions of the individual posters rather than as facts. The ODPC appealed this decision to the High Court.

High Court Judgment

The High Court, in overturning the decision of the Circuit Court, ruled that the appropriate legal test had not been applied.

The High Court noted the importance of considering the Reddit post in its entirety rather than considering the public's perception of a google search result in isolation. If this analysis had taken place, the High Court argued that it would have been clear that the posts were statements of opinion rather than statements of fact.

The High Court placed particular emphasis on the fact that, in order for Google to comply with the Circuit Court determination, Google would have to engage in editing functions beyond those contemplated by the Google Spain decision e.g. carrying out daily reviews of discussion forums and placing statements of opinion in parenthesis.

The High Court agreed with the ODPC's initial finding that Google's refusal to remove the link from its search results did not contravene the DP Acts.

The Right to be Forgotten and the GDPR

The General Data Protection Regulation (the GDPR) which enters into force on 25 May 2018, requires member states to place the right to be forgotten (now referred to as the right to erasure) on a statutory footing and provides for certain circumstances in which a refusal to comply with a request for erasure might be justified. One such exception is connected to the right to exercise freedom of expression and information.

This High Court determination may, therefore, serve to inform the courts as to the circumstances in which it will be appropriate to grant data subject requests for erasure having regard in particular to competing interests such as freedom of expression and public interest.