On August 18, 2015, the UK Information Commissioner Office (“ICO”) issued an enforcement notice against Google because it contravened the first and the third data protection principles by referencing to an article detailing the delisting of a link that followed a “request to be forgotten”.
According to the ICO, Google contravened the third data protection principle by providing links to websites as a result of a search made on the basis of the name of the complainant that requested and obtained her name to be delisted from search results. The authority considered that this type of processing of personal data was “no longer relevant and that it is excessive in relation to the purpose for which it is processed”. The ICO also considered the processing to be contrary to the first data protection principle insofar as “it has a disproportionately negative impact on the complainant’s privacy”.
The background. In light of the holding by the European Court of Justice (“ECJ”) in the Costeja case (C-131/12), individuals have the “right to be forgotten” from the search results when their names’ listing is incompatible with the Data Protection Directive (95/46/EC). (see here our article)
Accordingly, Google removed from its search results the link to a website containing a report about the complainant’s conviction. It also informed the website of the removal. However, subsequently, the website published an article about Google’s removal of the link, including details about the content of the original story concerning complainant’s conviction. A number of other media organizations also published a number of similar articles.
The complainant requested that Google remove links to these websites. However, Google refused to do so on the grounds that the search links were still relevant and in the public interest. According to the search engine “the article linked concerned one of its decision to delist a search result and as such formed an essential part of a recent news story relating to a matter of significant public importance”.
However, the ICO agreed with complainant and held that Google should remove the links from the search results. It considered the following factors to be relevant.
- Public life. “It is not a case where the information is about an individual in public life”, or where making the information available would protect the public from unprofessional conduct.
- Sensitive personal data. The information disclosed is sensitive personal data within the meaning of applicable data protection laws.
- Passage of time. The information relates to a ten years old conviction and it is therefore not reasonably current.
- The processing has a disproportionately negative impact on the complainant’s privacy since it relates to a minor offence, of no public interest.
- Journalistic context. The ICO understand that the search result relate to journalistic content and it does not dispute that decisions to delist may be newsworthy. “However, that interest can be adequately and properly met without a search made on the basis of the complainant’s name by providing links to articles which reveal information about the complainant’s spent conviction.”
- Criminal offence. The search results relate to information about a conviction for a relatively minor criminal offence.
The decision can still be appealed by Google.
Material related to Case C-131/12 in the Google Spain SL, Google Inc. v Agencia Española de Protección de Datos is available at http://www.technethics.com…
For more information, Francesca Giannoni-Crystal