Ireland: First Irish ‘Right To Be Forgotten' Case

Click here to subscribe to our weekly tech law updates

The first 'right to be forgotten' case in the Irish courts came before Dublin Circuit Civil Court in May 2016. Mark Savage, a former local election candidate, challenged a decision of the Data Protection Commissioner ("DPC") which supported Google's refusal to remove a link referring to him as "Dublin's homophobic candidate". The Circuit Court overturned the DPC's decision, and the case is now on appeal to the High Court. We consider the case.

What is the 'right to be forgotten'?

The concept of the 'right to be forgotten' was created by the EU's highest court, the CJEU, in the Google Spain case. Previously, individuals had the right, in certain circumstances, to request the deletion of their personal data. However, the court found an additional, specific right in respect of personal data processed by search engine providers, such as Google.

In short, the 'right to be forgotten' allows an individual to ask search engines to 'delist' certain search results which appear against that individual's name. The right is intended to apply in cases where the results returned are inaccurate, inadequate, irrelevant or no longer relevant, or excessive. However, this right is subject to certain restrictions, particularly where there is a public interest in the information.

The CJEU recently handed down a decision on the right to be forgotten in Manni, finding that information in the company register can only be removed in circumstances where it is "exceptionally justified". We will consider this case separately.

Background

In 2014, Mark Savage complained to the DPC that 'Reddit.com' contained the URL: "Mark Savage North County Dublin's Homophobic Candidate". The web page appeared in Google's search results when a search was carried out against Mr Savage's name. Mr Savage had run as a candidate for public office as Councillor in the 2014 local elections, with election literature referring to "Gay Perverts cavorting in flagrante on the beach in broad daylight". Mr Savage argued that the Reddit page presented inaccurate information as it presented him as a homophobe without any qualification. He asked Google to delist the Reddit search result.

Google's decision

Google refused to take down this link. It maintained that, as a public figure, Mr Savage had joined a debate on matters relating to the gay community. Google added that, as this information related to Mr Savage's public persona, it was in the public interest that internet users have access to his political and cultural views.

The DPC's decision

Mr Savage appealed Google's refusal to the DPC, who concluded on 26 March 2015 that there had been no breach of his rights under Irish data protection law. The DPC took the view that the inclusion by Google of the link could not be considered prejudicial to Mr Savage's fundamental rights and freedoms. In particular, the DPC took the following criteria into consideration:

  1. Does the data subject play a role in public life? Is the data subject a public figure?
  2. Is the data accurate?
  3. Is the data relevant and not excessive?
  4. Is it clear that the data reflects an individual's personal opinion, or does it appear to be verified fact?
  5. In what context was the information published? Was the content voluntarily made public by the data subject?

The DPC indicated that the text of the URL expressed the opinion of the poster and was not expressed as being factually accurate. The DPC added that the public interest and freedom of expression outweighed the right to privacy in this case.

Circuit Court

Mr Savage appealed the DPC's decision to the Circuit Court. He argued that users of the internet are increasingly reliant on it for ascertaining information and the need for accuracy regarding factual information is of "paramount importance". He added that a user would form the view that he had run in the local elections as a homophobic candidate, due to how the URL title was displayed by Google. He argued that the URL title had the appearance of a verified fact, without any qualification, which was inaccurate, excessive and inadequate.

The court found that the decision of the DPC "fell into error" on the basis that it was "far from clear" that the URL title was the expression of the poster's opinion. While accepting that the procedures followed by the DPC were appropriate, the court disagreed with the findings arrived at and took the view that Mr Savage's fundamental rights and interests had been prejudiced. The court decided that the balance of rights fell in favour of Mr Savage, despite that he was a public figure. 

Analysis

The case is now on appeal to the High Court and is listed for hearing in May 2017. It remains to be seen whether the decision of the Circuit Court will be overturned.

While the DPC could not consider the merits around any allegation of defamation, the key focus was whether the text of the URL was fact or opinion. The DPC formed the view that it was an expression of a personal opinion, rather than a finding of fact, because Reddit was understood as not being a source of verified facts. However, the court supported Mr Savage's view that it was not immediately clear that this was the case. Therefore, in the court's view, without any quotation marks or parenthesis indicating that the URL was re-quoting a view, it bore the appearance of a verified fact.

Interestingly, in deciding the "accuracy" of the statement, the High Court appeal may come down to a determination of whether the average user understands that Reddit is not "a source of verified fact" and that Reddit URLs are determined by the title of a user's post.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
13 Sep 2017, Seminar, Dublin, Ireland

We will host our third Employment Law Top Tips seminar for 2017 on Wednesday 13 September in our offices at South Bank House, Barrow Street, Dublin 4.

 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.