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Global judicial developments on the right to be forgotten

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Global judicial developments on the right to be forgotten


Recently, the Japanese Supreme Court has delivered its first decision on the matter, refusing to enforce a right to be forgotten against Google. 
The Court ruled in favour of the search engine deciding to annul the order of a District Court to remove links to search results concerning the plaintiff's arrest and conviction for child prostitution three years before.
The Supreme Court upheld the decision of the High Court recognising a strong public interest of the information in question, what establishes the predominance of the right to information over the plaintiff's right of privacy. In other words, the Japanese Supreme Court has effectively balanced the individual’s right to privacy and the public right to information. Moreover, it is worth mentioning that the Court has also stated that search results consist in a form of speech. For this reason, although search results are generated by machines, their restriction could be lead to a restriction of free speech.



In a judgement last November, the Third Chamber of the Brazil's Superior Court of Justice decided the Xuxa case, saying that search engines "(i) are not liable for the content of search results carried out on their website; (ii) cannot be compelled to previously filter search results carried out by each user; and (iii) cannot be compelled to eliminate from their system results related to a specific term or expression”.
The Court thus ruled in favour of Google and recognised that a right to be forgotten would impose a burden over search engines which could lead to digital censorship.
Brazil's Supreme Court — which is a higher court than the Superior Court — will hear a case on the right to be forgotten later this year. The case at issue – analysed here – involves TV Globo which is Brazil's largest TV network.



On February 24 the Conseil d’Etat – the French high administrative court – raised several questions to the CJEU, on the interpretation of the Data Protection Directive (Directive 95/46/EC) in the light of the decision Google v. Costeja Gonzalez.
The case at issue originated from the refusal of the French data protection authority CNIL to order the removal of links displayed as a result of a Google search performed on the basis of the appellants’ names. 
In particular, the Conseil d’Etat raised these specific questions (emphasis added, and thanks DLA Piper for the English version):

  1. Considering the specific responsibilities, powers and capabilities of search engine operators, does the prohibition on processing sensitive data and data relating to offenses and criminal convictions, subject to certain exceptions, apply to search engine operators as controller of the processing in the search engine?
  2.  If yes:
  • Does this mean that search engines must systematically delist links to webpages processing sensitive and/or data relating to offenses and criminal convictions, whenever the relevant individual so requests?
  • How do the exceptions to the prohibition apply? In particular, can search engine refuse to delist links if they find, for example, that the data subject consented to the processing of their personal data or that the data has been disclosed to the public by the data subject or is necessary for the establishment, exercise or defense of legal claims?
  • Can search engines refuse to delist links to websites processing such data for journalistic purposes
  1. If no:
  • What data protection law requirements must the search engines comply with, considering their specific responsibilities, powers and capabilities?
  • When search engines find that webpages contain illicit content and their delisting is requested:
    • Are the search engines required to remove the links to those webpages from the search results?
    • Or are they required to take this circumstance into account when assessing the delisting request?
    • Or does this circumstance have no impact on such assessment?
    • If it does have an impact, how must the lawfulness of a publication be appreciated when the personal data contained in such publication originates from processing that fall outside the territorial scope of the 1995 Directive and Member State laws?
  1. Irrespective of the response to the first question:
  • Irrespective of the lawfulness of the publication:
    • If an appellant demonstrates that his/her personal data has become incomplete, inaccurate or outdated, do search engines have to delist the links?
    • More specifically, if an appellant demonstrates that the information regarding a past judicial procedure no longer reflects his/her current situation, do search engines have to delist links to webpages containing such information?
  • Does information regarding an individual’s indictment or trial, and the subsequent conviction, constitute data relating to offenses and criminal convictions? More generally, do webpages containing this type of information fall within the scope of these requirements?


In the case Mark Savage v the Data Protection Commissioner and Google Ireland Inc., the Circuit Court recognised that Mr. Savage, a former election candidate, has the right to obtain the removal of the information posted about him on the social news aggregator Reddit.
The plaintiff distributed during his campaign for local elections leaflets with harsh content with regards to homosexuals. The leaflets were discussed in a Reddit thread which branded Mr. Savage as "North County Dublin's homophobic candidate". As a result, the name of the candidate was associated with this thread in Google searches and, for this reason, Mr. Savage asked Google to de-index the links.
The Irish Data Protection Authority ruled in favour of Google, not recognising infringement of any rule under the Irish Data protection law. However, this decision was overturned by the Circuit Court which found that the fundamental rights of the Appellant had been prejudiced in the case. In May, the Irish Supreme Court will deliver its decision on this case.


Although it is not specifically related to the newspaper industry, it is worth mentioning that  the CJEU recently delivered a new decision related to the right to be forgotten (C-398/15). 
In this case, the Court has not recognised the right to be forgotten of an entrepreneur which complained that the old information related to his bankruptcy and available on the Italian companies register prejudiced some of his business activities.
The Court found that the Business register plays a fundamental role in ensuring transparency in the relation between businesses and third parties, and, for this reason, the right to be forgotten cannot be applied automatically as time goes by. However, the Court has recognized that in some exceptional cases the right of privacy could prevail, but, it is necessary to assess the circumstance on a case-by-case basis. 
Author: Giovanni De Gregorio



2017-04-25 15:09

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