A recent decision of the Irish Circuit Court will mean that the High Court in Ireland will have the opportunity to add to the evolving EU jurisprudence involving the right to be forgotten later in 2017.
The Circuit Court ruled in favour of a politician and candidate in the 2014 local elections, Mark Savage, who had made an application to Google to remove a link to a post appearing on Reddit, which in his view described him as homophobic. This was the first instance in which an Irish Court was required to consider the decision of the Court of Justice of the European Union ('CJEU') in Google Spain SL & Google Inc v Agencia Española de Protección de Datos (AEPD) & Mario Costeja González ('Google Spain'). That case established a 'right to be forgotten'.
This article looks at the facts and issues in the case.
Google Spain revisited
In its seminal 2014 judgment in Google Spain, the CJEU found that in certain circumstances, an individual has the right to have information about them removed from the results of an internet search carried out against their name. The right attempts to balance the right to privacy with the right of freedom of expression. It was established through the implicit right of erasure which can found in the European Data Protection Directive (95/46/EC) ('the Directive').
As a brief reminder of the circumstances of the case: Mr González had made an application to Google Spain seeking the removal of certain links to archived newspaper announcements dating from 1998, which related to attachment proceedings for the recovery of social security debts he owed. These search results appeared following a Google search where his name was used as a search term. Mr González argued that as this information was now twelve years old, that it was historic, irrelevant and should be removed by Google.
Google refused to remove the link and the Spanish Courts referred the question on the interpretation to be given to certain provisions of the Directive to the CJEU.
Article 12 of the Directive provides individuals with certain rights in respect of the processing of their personal data, through a right of erasure. That right permits the 'rectification, erasure or blocking of data, the processing of which does not comply with the provisions of the Directive, in particular because of the incomplete or inaccurate nature of the data.'
The CJEU ruled that search engine providers like Google are 'data controllers' within the meaning of the Directive and that it was irrelevant that Google did not exercise control over the personal data published on third party websites. The CJEU determined that the key issue was whether the relevant data could be accessed following a search using the person's name.
The Court ruled that search engines must comply with EU data privacy laws and remove data that are 'inadequate, irrelevant, or no longer relevant'. The Court stated that 'the operator of a search engine is liable to affect significantly the fundamental rights to privacy and to the protection of personal data'. The Court also emphasised that the right to privacy must compete with the right of internet users to have access to information.
The potential implications for individuals and search engines were well documented following the decision, and the judgment was considered to have extensive implications for internet search engines. Recent statistics suggest that Google has received 679,566 requests and considered and evaluated 1,878,806 URLs. It has removed 43.3% and refused 56.7%.
Following the decision, an Article 29 Working Group was established whose task was to establish (non exhaustive) criteria to be considered when a Data Protection Authority is deciding whether to de-list data held by a data controller.
Savage v Data Protection Commissioner
The proceedings before the Irish Circuit Court related to Mr Savage's appeal against a decision of the Irish Data Protection Commissioner ('DPC'), who agreed with Google's decision not to delist links responsive to a search using Mr Savage's name.
Mr Savage appealed against this decision on the basis that the Irish Data Protection Acts 1988 and 2003 ('DPAs') provide that an individual is entitled to have rectified or, where appropriate, blocked or erased, any data to which there has been a contravention by a data controller.
The URL appearing on Reddit.com stated 'Mark Savage North County Dublins Homophobic Candidate' beneath which a public thread discussed the content. The link appeared following a search result when Mr Savage's name was entered into the search engine.
Google refused to remove the link on the basis that Mr Savage was a public figure who had been a candidate in the recent local election, and who had engaged publicly in a debate on the issue. Google considered that Mr Savage's views related to his public persona rather than his private life, and refused to remove the link.
The decision of the DPC
Upon appeal, the Commissioner agreed that Mr Savage was a public figure and also that the data were relevant and accurate. She stated that 'accurate means accurate as to a matter of fact and this link remains accurate in that it represents the opinion expressed of you by a user of the relevant forum.'
The Commissioner declined to comment on the quality of the opinion and stated that it was clear that the data reflected an individual personal opinion and not a verified fact. With respect to the URL and discussion forum, the Commissioner noted that Mr Savage had participated in the online discussion and had posted three separate entries. The Commissioner concluded that she was not going to order the removal of the link.
The Appeal to the Circuit Court
Mr Savage appealed to the Circuit Court and a decision was handed down in October 2016. He had argued that the search result was inaccurate and should be removed, as the URL defined him as a homophobe without any qualification or parenthesis. Mr Savage argued that a user having searched his name on Google would form the view that he had run in the local election as a homophobic candidate.
Whilst he agreed that the commentary beneath the URL constituted freedom of expression in the public interest, he stated that the statement should be removed where it was inaccurate and had been asserted without qualification or disclaimer. Mr Savage also stated that the URL would impact on his employment prospects and future plans.
In submissions before the Court, the DPC said if the link was inaccurate, out of date, excessive or irrelevant, Mr Savage could have sought its removal as per the decision in Google Spain. However, the key issue of the case turned on the accuracy of the data.
Section 2(1) of the DPAs requires that data are kept accurate and the DPC submitted that as the URL 'accurately represented the opinion of the user who posted it', the data were accurate and as such did not require removal. The Commissioner said that due to the nature of online forums, opinions are traded and views shared and therefore 'anything represented on it is unlikely to be qualified as to its factual accuracy but rather represents a perception of a particular online user.'
In the Commissioner's view, the online user was 'expressing a personal opinion on the appellant based on election material...rather than making a finding of fact.' Coupled with this was the Commissioner's view that 'any individual user of the internet seeking out facts in relation to any topic is unlikely to consult an online discussion forum such as Reddit as a source of verified facts.'
The Circuit Court judgment
In considering the submissions made by the parties, the Court cited the criteria of the EU's Article 29 Working Group in assessing whether the data in question were accurate and said that data protection authorities 'will be more likely to consider that delisting of a search result is appropriate where there is inaccuracy as to a matter of fact, and where this presents an inaccurate, inadequate or misleading impression of an individual.'
The Court found that the URL was not accurate and 'that if one were to simply consider the URL title, and apply the reasoning of the DPC, it is not accurate by virtue of the fact that it is simply not clear.' The Court reached this decision notwithstanding that 'upon full consideration of the entire thread...it would become clear that the original poster is expressing his or her opinion.'
The decision of the Court turned on the interpretation of 'accurate' and how that impacted on the content contained in the URL. The Court's concern was that the interpretation given by the DPC left open 'the possibility of elevating a statement of opinion from the body of any such discussion forum to the status of accurate data, by merely accurately transposing the data from the body of the posting or thread to a URL heading, in the absence of any indication that it is actually requoting such a view.'
In the Court's view, the addition of quotation marks or parenthesis would have elevated the title from one of perceived fact to one of opinion.
Absent such an amendment, it was not considered to constitute 'accurate data'. It was on this basis that the Court concluded that the DPC had made an error and that the fundamental rights and interests of Mr Savage had been prejudiced.
Future of the right to be Forgotten
From May 2018, the General Data Protection Regulation will put the right to be forgotten on a statutory footing, ensuring that it is no longer a right implicit in the right to erasure.
Article 17 of the Regulation states: "The data subject shall have the right to obtain from the controller the erasure of personal data relating to them and the abstention from further dissemination of such data". The Regulation sets out prescribed positive obligations on data controllers and large fines for failures to comply with the Regulation.
As is the case under Articles 9 and 12 of the existing Directive, the right to be forgotten in the GDPR is not absolute and is subject to certain exemptions or derogations. These include 'the right of freedom of expression and information' (Article 17(3)(a)) and Article 23 which permits Member States to pass laws to restrict certain user rights where it is necessary and proportionate (for example, public security, protection of life and investigation of crime).
The High Court's appeal of the Circuit Court decision is currently listed for hearing in May 2017. It is understood that Google will be an active participant in the appeal.
The determination of these issues by the Irish High Court will be keenly awaited by interested parties in Ireland and beyond. If the finding of the Circuit Court judge is upheld, it is likely to encourage Irish users to exercise — and if necessary seek to vindicate — their right to be forgotten before the Irish High Court.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.