The "right to be forgotten" is a hot topic of
discussion in the context of imminent EU Data Protection Reform.
Article 17 of the new EU General Data Protection Regulation will
give data subjects the "right of erasure" to request that
data controllers delete any personal data relating to them, and
ensure there is no further dissemination of such data. Such
requests will extend to third-party hosts where that data may have
been sent, obliging deletion of any links, or copy or replication
of that data. This is likely to be particularly onerous on Internet
companies like Google, Facebook or YouTube, given the amount of
personal data processed on these platforms.
Case-in-point was highlighted in a recent court case, McKeogh v John Doe 1 & Ors . In
November 2011, a student evaded a taxi fare in Dublin. At the time
the taxi driver took a video of the culprit and posted it on
YouTube, asking help to identify the boy. This led to Mr McKeogh
being mistakenly identified as the perpetrator. The creation of a
Facebook page resulted in the video becoming viral and a campaign
of abuse began. In the words of Mr Justice Michael Pert, this
social media storm led Mr McKeogh to suffer a "miscellany of
the most vile, crude obscene and obnoxious comments"
wrongfully condemning him as the culprit.
In court, Mr McKeogh was proven innocent beyond all reasonable
doubt on the grounds that he wasn't even in the country at the
time of the crime, having been studying in Japan. However, Mr
McKeogh was refused an order prohibiting the press from publishing
the defamatory material. Furthermore, YouTube, Google and Facebook
failed to respond to requests to remove the video and related
links. Therefore, despite clearing his name in court, the
allegations and adverse comments remained online and in the media,
tarnishing his reputation and future career prospects. In a
judgment given in the High Court in Ireland on 16 May 2013, Mr
Justice Michael Pert commented damages could not sufficiently
compensate the defendant for the distress suffered, which would
continue for so long as the material remained online. As a result,
a mandatory injunction was granted ordering YouTube, Google and
Facebook to take down the offending material within 14 days.
This judgment has the potential to open the floodgates and set a
precedent to justify further requests by others objecting to videos
posted about them on social media.
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Some commentators have suggested that an actual suspension of data transfer may potentially lead to a court decision, which could deny the supervisory authorities’ competence to suspend data transfers.
The UK Information Commissioner’s Officer stated that non-media organisations may rely on the special-purposes exemption for journalism in s32 of the Data Protection Act 1998, to withhold personal data in response to Data Subject Access Requests.