The High Court has delivered its first judgment on the “right to be forgotten” in Ireland. This follows the landmark decision of the Court of Justice of the European Union (CJEU) in Google Spain SL & Anor v AEPD & Anor (Google Spain) in May 2014.
In that decision, the CJEU found that, in certain circumstances, an individual has a right to request that links to personal information appearing in search engine results, such as Google, be removed. This has become known as the “right to be forgotten”. On 25 May 2018, the right to be forgotten will be placed on statutory footing when the General Data Protection Regulation comes into force across the EU.
Details of the complaint to Google
Mr Savage ran in the local government elections in May 2014 in the Swords Ward for Fingal County Council. Some of the content of an election leaflet, which he distributed, sparked some debate on the discussion website Reddit.com. A contributor to the discussion uploaded the election leaflet with the heading “North County Dublin’s Homophopic Candidate”. This was followed by a number of controversial comments from other contributors. Mr Savage participated in the online discussion himself and objected to being labelled as homophobic.
In August 2014, Mr Savage complained to Google that when his name was typed into a Google search, the search results brought up references to the discussion labelling him as homophobic.
The information, which appeared in the search results, can be explained as follows:
- URL title - the first line in blue is the title of the website. In this case, the URL title was – “Mark Savage - North County Dublin’s homophobic candidate”. It was a hyperlink to the discussion on Reddit.com. The content of the URL was not created or modified by Google but simply transposed from the Reddit.com webpage.
- URL link - the web address of the webpage, Reddit.com appeared in green underneath the URL title.
- Snippet text - below the URL link is the grey descriptive text that shows how the page relates to the internet user’s query. This is completed automated. In this case, the text stated “May 23 2014 – Mark Savage North county Dublin’s homophobic candidate. Me thinks Mark doth protest too much…I believe he’s running in Swords”.
Google responded to the complaint to say that as Mr Savage had run for public office, he had injected himself into the public sphere and so, the public interest in the information outweighed his privacy.
Mr Savage made a complaint to the Data Protection Commissioner (the DPC).
Criteria considered by DPC
In her ruling of 26 March 2015, the DPC noted that, in November 2014, the Article 29 Working Party, the EU data protection advisory body, created a list of common criteria for handing complaints by European Data Protection Authorities in the wake of the Google Spain decision. The DPC found the following criteria to be particularly relevant to Mr Savage’s complaint:
- Does the data subject play a role in public life? Is the data subject a public figure? The DPC noted that Mr Savage ran for public office in the 2014 local elections.
- Is the data accurate? The DPC noted that “accurate” means accurate as to a matter of fact. In this case, the DPC found that the link remains accurate as it represents an opinion about Mr Savage expressed by a user of a relevant forum. The quality of that opinion was not a matter for the DPC.
- Is the data relevant and not excessive? The DPC noted that the discussion content of the URL is relevant to public interest as Mr Savage ran for public office
- Is it clear that the data reflects an individual’s personal opinion or does it appear to be a verified fact? The DPC found it was clear that the individual who posted the comment was expressing his/ her opinion
- In what context was the information published? Was the content voluntarily made public by the data subject? The DPC was of the view that the discussion related to an opinion based on material which Mr Savage had disseminated through his election campaign. The DPC also thought it relevant that Mr Savage had taken part in the on-line discussion.
Taking into account the above, the DPC dismissed Mr Savage’s complaint.
Mr Savage appealed to the Circuit Court.
Circuit Court decision – Use of quotation marks or parenthesis
The Circuit Court allowed Mr Savage’s appeal. It found that while the fact Mr Savage was a public figure mitigates against the requirement to remove the information, the information must be accurate. The Circuit Court examined the URL title and found that it was not clear from the URL title alone that the original poster was expressing his/ her opinion. The Court was of the view that if the expression was to be one of opinion, at the very least, one would have expected it to be carried within quotation marks or parenthesis.
The judgment was appealed to the High Court.
High Court overturns Circuit Court decision
The High Court held that in applying the Google Spain decision, the Circuit Court Judge had a duty to consider the underlying article the subject of the search. It held that the Circuit Court Judge was incorrect in law in considering the URL heading in isolation. It stated that if the underlying discussion thread had been reviewed, it would have been clear to the Circuit Court that the post was an expression of opinion.
The High Court noted that in overturning the DPC’s decision, the Circuit Court had not found any serious breach by the DPC of any legal principle.
The High Court also noted that Google does not carry out any editing function and that the information appearing in the search results are gathered automatically. It stated that to oblige Google to place quotation marks around a URL heading would involve an editing process, which was not a simple task and also not envisaged in the Google Spain decision.
Implications of the decision
The decision by the High Court is welcome news for search engines like Google. If the Circuit Court decision had been upheld, the entire processes used by commercial search engines would have had to be reviewed and this would no doubt have been very costly. It remains to be seen if Mr Savage will appeal the decision. However, as the right to forgotten will soon be on legislative footing, there is no doubt that this issue will come before the Courts again.
Savage v Data Protection Commissioner & anor [2018] IEHC 122