The Court of Justice of the European Union (CJEU) recently held
that Google must, if an individual requests, remove or block
personal data from search results against the individual's
name. Is there an equivalent right of deletion in Australia and are
there plans for reform?
The 13 May 2014 CJEU decision required Google to remove links to
two 16-year old newspaper articles from its search results for Mr
Costeja Gonzŕlez, a Spanish national and resident. The
articles referenced attachment proceedings against Mr
Gonzŕlez for the recovery of social security debts which had
been resolved for many years.
Mr Gonzŕlez lodged a complaint against the newspaper and
Google, with the Spanish data protection agency in 2010. The
complaint against the newspaper was dismissed as they had lawfully
published the articles. The agency held that Google must remove the
personal data from its search results notwithstanding that the
newspaper did not have to remove the articles from its website.
Google appealed to the Spanish High Court, which in turn referred
questions to the CJEU to be determined.
There were a number of issues referred to the CJEU for
determination including whether the right to
rectification/erasure/blocking of personal data under Article 12
(b) of European Directive 95/46 (Directive) or the right
to object to processing of personal data under Article 14 of the
Directive require a search engine, on request by a data subject, to
remove or block from its search results a data subject's
personal data indexed from a third party website, even though that
third party is not under an obligation to remove the personal data
from their website.
The CJEU held that the Directive required Google to remove the
links to the newspaper articles in question from its search results
for Mr Gonzŕlez, even though the newspaper did not have to
remove the articles from its website. The CJEU considered the
'important role played by the internet and search engines in
modern society' and acknowledged that search engine results
against an individual's name offer a 'structured overview
of the information' available on that individual over the
internet, allowing the searcher to 'establish a more or less
detailed profile of the individual'.
The court considered that it is not only in circumstances of a
data controller's non-compliance with the Directive or where an
individual is prejudiced, that an individual may request
rectification/erasure/blocking. An individual may also request
rectification/erasure/blocking at any other time on compelling
legitimate grounds relating to the individual's particular
situation. The CJEU considered that in a case such as this, that
would involve balancing the individual's legitimate interests
against internet users' interests in being able to access that
personal data in search results. However, the court found that,
having regard to the rights to protection of private life and
personal information under Articles 7 and 8, respectively, of the
Charter of Fundamental Rights of the European Union, the legitimate
interests of a data subject to exercise their right to request
erasure 'will, as a rule, override the economic interests of
the search engine operator as well as the interest of the general
In response to the CJEU decision Google has launched a webform
whereby European citizens can request removal of links, which is
WILL AUSTRALIA 'FORGET' YOU?
There is currently no right under the Australian Privacy Act
1988 (Cth) (Privacy Act) for individuals to request an entity
to delete their personal information. Individuals do have a right
to request an entity to correct personal information held about
them and the entity must take reasonable steps to do so. Entities
must also destroy or de-identify personal information that is no
longer required for any purpose for which the personal information
may be used under the Australian Privacy Principles
A recent Australian Law Reform Commission (ALRC)
discussion paper has recommended a new APP which would give
individuals the right to request destruction or de-identification.
While the ALRC has also proposed a statutory cause of action for
serious invasions of privacy, there remains no Australian
equivalent to the European fundamental right to privacy.
The ALRC's final report to the Attorney-General is due this
month. It remains to be seen whether the proposed new APP will be
introduced. However, if it is introduced, it is unlikely it will
have the 'teeth' of the European right to be forgotten in
the absence of a fundamental right to privacy in Australia.
The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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