Published by Alisha McKerron on 25 February 2019
What would we do without modern day commercial search engines? For starters it would take us much longer and require much more effort to find answers to everyday questions. Search engines allow us to find the proverbial needle in a haystack.
At first glance this may seem like a good thing, but what if the search results produce links to incriminating information about us. What protection if any do private individuals have?
Google vs Spain
This question was considered in a landmark case of Google v. Spain (C‑131/12). The case involves an individual who requested the removal of a link to a digitized 1998 article in La Vanguardia newspaper about an auction for his foreclosed home, for a debt that he had subsequently paid. He asked the news organisation to remove the article and Google to remove any links to it. The Spanish Data Protection Agency said that the news organisation should be left alone but that Google should remove any links to the article.
On appeal the European Court of Justice affirmed the judgment of the Spanish Data Protection Agency i.e. it upheld press freedoms by rejecting a request to have the article concerning personal bankruptcy removed from the web site of the news organization. However, the Court ruled that European citizens have a right to request that commercial search firms, such as Google, that gather personal information for profit, should remove links to private information when asked, provided the information is no longer relevant. The Court found that the fundamental right to privacy is greater than the economic interest of the commercial firm and, in some circumstances, the public interest in access to information.
(It’s worth mentioning that in November 2018 Google held an 89.1% market share in the UK.)
Google subsequently set up an online removal-of-links-from-its-search-results form for customers to use. It has also published a useful guide entitled “Fix problems & request removals” on Google Search Help. The guide explains the few instances Google will remove content from Search which includes sensitive personal information, like your bank account number, or an image of your handwritten signature, or a nude or sexually explicit image or video of you that’s been shared without your consent. Interestingly the guide does not refer to data that is “inadequate, irrelevant or excessive in relation to the purposes of the processing” (para 92 Google v. Spain).
Right to erasure (“right to be forgotten”) (art. 17 GDPR)
Two years after the Google v. Spain judgement, the General Data Protection Regulations (GDPR) 2016 were published which included a right to erasure (art. 17). This is also know as the right to be forgotten and has been described as “the right to silence on past events in life that are no longer occurring.” It is distinct from a private right (which involves information which is not publicly known) because it involves removing information that was publicly known at a certain time and not allowing third parties to access the information. Although referred to as a new right it isn’t; it existed to an extended degree in EU law, and in the first data protection laws enforced in Europe.
Under GDPR, we have the right to have our personal data erased in six circumstances:
- if the organisation no longer needs our data;
- we initially consented to the use of our data, but have now withdrawn our consent;
- we have objected to the use of our data, and our interests outweigh those of the organisation using it;
- the organisation has collected or used our data unlawfully;
- the organisation has a legal obligation to erase our data; or
- the data was collected from us as a child for an online service.
Exemptions to the right to erasure (art. 17(3) GDPR)
Our right to erasure does not apply if processing is necessary for one of the following reasons (GDPR art.17(3)):
- to exercise the right of freedom of expression and information;
- to comply with a legal obligation;
- for the performance of a task carried out in the public interest or in the exercise of official authority;
- for archiving purposes in the public interest, scientific research historical research or statistical purposes where erasure is likely to render impossible or seriously impair the achievement of that processing; or
- for the establishment, exercise or defence of legal claims.
In summary our right to erasure is limited and is trumped by certain exemptions; freedom of expression and information (or the right of the public to have access to information) being one of them. This is demonstrated in the 2015 court ruling in the Manni case (C-398/15), which clarifies that an individual seeking to limit the access to his/her personal data published in a Companies Register does not have the right to obtain erasure of that data, not even after his/her company ceased to exist.
Mr Manni requested his personal data to be erased from the Public Registry of Companies after he found out that he was losing clients who performed background checks on him through a private company that specialised in finding information in the Public Registry. This happened because Mr Manni had been an administrator of a company that was declared bankrupt more than 10 years before the facts in the main proceedings. In fact, the former company itself was removed from the Public Registry. The court concluded that Mr Manni did not have the right to obtain erasure from the Companies Register, but he did have a right to object.
Case law shows that the web and search engine results impact individual’s reputation and not always in a positive way. Privacy law does protect us.
The right to be forgotten under GDPR gives us the right to have our personal data erased but only in limited circumstances (listed above) and not if any of the exemptions (listed above) apply. One of these exemptions is freedom of expression. The effect of this is to exempt companies listed as “media” companies.
The Google v. Spain case gives us a right to request that commercial search firms, that gather personal information for profit, should remove links to private information when asked, provided the information is no longer relevant.
So, what practical steps should we take if searching our name on the internet brings back a link to information about us, and this is having a negative effect on our privacy?
The first step we should take is to ask the publisher to remove the personal data from its website; that way it will no longer appear in search results. Should the publisher refuse to do so and we are satisfied that one of the six circumstances mentioned above applies, and none of the exemptions mentioned above apply, we should complete the Information Commissioner’s Office (ICO) online complaint form so that ICO can pursue the matter further on our behalf.
If we are not satisfied, that one of the six circumstances mentioned above apply we could ask the publisher to use the robot exclusion standard to inform web robots or crawlers not to process or scan the page with the personal data. This will stop any links appearing in search results. However, the publisher may well reject this request on the basis that its freedom of speech trumps our right to privacy.
Search result links to personal data
If the publisher refuses to remove the personal data from its website, the next step we should take is to complete Google’s an online removal-of-links-from-its-search-results form. Although the personal data shall remain on a website it will be less visible if links are removed. Should Google refuse to remove search result links we should complete ICO’s online complaint form but only if we are satisfied that the personal data is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed” and that our right to privacy is greater than the economic interest of Google and the public interest in access to information.
If we are unsuccessful on all of these fronts, it may be worth writing an article in rebuttal or an article which others may find useful. Although searching our name on the internet will continue to bring back a link to information about us which has a negative effect on our privacy, it will now bring back our positive article as well. The more meaningful articles we publish the better.