The Right to Be Forgotten and the Right to Erasure under the GDPR
Negative search engine results can have unpleasant consequences: missing out on a job or having to face embarrassing questions from friends or loved ones. This will seem particularly unfair where the information coming up against a search of your name is, false, misleading or simply very old.
What can be done?
There are a number of ways of tackling adverse search engine results. The traditional method has been to seek the removal of the source material. This is done by establishing a dialogue with, or taking legal action against, the author of the source material, the webmaster, the hosting company, the registrar, registry or even the ISP. However, these routes will not always be appropriate or cost effective: for instance, where a claim against the author is not commercially viable, where there are number of problem pages or where the intermediary is based overseas and claims immunity under local laws. In these circumstances, it may be preferable to approach search engine operators (e.g. Google).
What can search engine operators do?
Search engine operators such as Google can, in an instant, filter webpages from the search results that appear for any given name. This means that whilst the source material remains on the internet it will not appear against a search of your name. The practical effect of this is that the webpages in question are significantly less likely to be accessed by those who know you or who are trying to locate/discover information about you.
Will search engine companies filter results?
Historically, search engine operators have been very reluctant to filter search engine results. This is because they essentially consider their role to be to “organise” the World Wide Web and provide a service whereby search enquiries generate the most relevant results. Generally, they view the filtering or doctoring of results as censorship and believe that their role should be an impartial one.
This all changed in May 2014 when the European Court of Justice handed down the decision in Google Spain SL, Google Inc. v Agencia Espanola de Proteccion de Datos (AEPD) and Mario Costeja Gonzalez (Case C-131/12), a case colloquially known as ‘Google Spain’.
In April 2018, in NT 1 & NT 2 v Google LLC  EWHC 799 (QB) the High Court of England and Wales made its first delisting order compelling Google to remove links where it had rejected a request. This judgment provides some guidance on when search results should be delisted.
In May 2018, the General Data Protection Regulation ('GDPR') and Data Protection Act 2018 came into force. These enshire a 'Right to Erasure' in statute law for the first time.
What was the decision in Google Spain?
Google Spain is important for two reasons. Firstly, it established that those who were the subject of adverse search engine results had a ‘right be forgotten’. Secondly, it established that Google and other search engine operators were ‘Data Controllers’ under European data protection law.
What is the ‘right be forgotten’?
In the context of search engine results, the right to be forgotten is the right for an individual not to have their personal data (normally their name) processed where the processing is "inadequate, irrelevant, no longer relevant or excessive”. An individual is entitled to request that Google or other search engine operators filter such results against searches of their names. The content might relate to old media reports, opinions expressed on blogs or bulletin boards or even spent convictions. The right to be forgotten recognises that outdated information like this should not be returned on a search for an individual’s name ad infinitum - if the individual objects to this.
What is the ‘right be erasure’?
The right to erasure is effectively the statutory codification of the right to be forgotten, introduced by the GDPR. Its ambit is wider than search engines. A right to erasure request can be made to any party that holds your personal data.
The GDPR, the Data Protection Act 2018 and Google
As a Data Controller, Google and search engine operators have legal obligation to process ‘personal data’ in accordance with strict data protection principles set out in the GDPR and Data Protection Act 2018. The principles include requirements that personal data is processed fairly and lawfully, that it is “adequate, relevant and not excessive”, and that it is accurate.
No absolute right
The ‘right to be forgotten’ and 'right to erasure' are not absolute rights. This means that there are circumstances where Google and other search engine operators can refuse to filter results. Typically, this will be where there is a “preponderant public interest” that overrides an individual’s data rights. To use an extreme example, it is highly unlikely that an individual convicted of serious sexual offences will be able to satisfy a search engine operator that search results should be filtered. However, there are many grey areas: for example, where an individual has committed a minor offence and there is a good argument that they should be able to move on with their life without the shackles of adverse search engine results against their name.
In borderline cases, preparing strong submissions to Google can make all the difference.
Are search engines complying with the principles established in Google Spain?
Google has indicated that it is filtering search engine results in accordance with the principles set out in Google Spain. As at 9 July 2018 Google states that it has received requests from within the UK in relation to 292,163 webpages and has agreed to filter 41.2% of these.
We have acted for a number of individuals where we have successfully persuaded Google to filter search engine results.
Will Google filter my results?
This will depend on how strong the argument is that results should be filtered. There are good cases and weak cases, although most fall between the two, where there are arguments both in favour of and against the filtering of results. What constitutes the ‘preponderant public interest’ and lawful data processing are matters of interpretation, with the search engine operator having to make a decision after having considered the individual facts of a case.
As can be seen from the above statistics, nearly two thirds of requests are in fact refused by Google. Often this will be because the request does not have sufficient merit at that time. However in many cases it will be because the case will not have been properly presented to Google.
Data protection law is complex and you can improve your odds of succeeding by instructing specialist solicitors to argue your case for you, focusing on what needs to be said and avoiding irrelevant comment.
What if Google refuses to filter search engine results?
There are inevitably cases where there is a disagreement over whether results should be filtered or not. In these circumstances, an individual may request that Google reviews its decision, complain to the Information Commissioner’s Office (ICO) or seek a court order requiring Google to filter search engine results. If Google has refused to filter your results we can assist you with challenging the decision.
As at 13 August 2015 the Information Commissioner's Office (ICO) stated it had received 472 requests to review refusals by Google not to delist search results. 40% of these requests were rejected as ineligible (for example because the complainant was not a living individual), the ICO agreed with Google in 40% of cases and requested that Google filter results in the remaining 20% of cases.
Why should I instruct Brett Wilson LLP
We have extensive experience in this field, predating the decision in Google Spain. We are pioneers in the law of data protection, privacy and defamation generally, particularly in relation to the liability of intermediaries and the applicability of data protection law to the internet. We acted for the claimants in two of the leading cases in the UK in this field: Tamiz v Google Inc  EWCA Civ 68 and The Law Society & Ors v Kordowski  EWHC 3185 (QB).
We have submitted requests to Google on behalf of senior executives of multinationals and PLCs, politicians, celebrities, models, lawyers, doctors, teachers, pilots and those involved in business and the arts.
Our efforts have led to the successful removal of links that include information relating to past/spent convictions, disciplinary sanctions, offensive blog articles, news reports, private/intimate images, workplace investigations and employment disputes.
In a number of cases we have persuaded the ICO to direct that Google filter results where Google has initially refused to do so.
We willl always let you know whether we think a request to Google is the most appropriate avenue. In some instances it may be preferable to contact those responsible for the source of the material direct.
What does it cost?
We recognise that instructing lawyers is rarely inexpensive. However, we are confident our charges represent excellent value for money, particularly for a specialist field. Our work is of the highest standard and we are listed in Listed in the Legal 500 as a leading firm in the field of defamation and privacy. We often act for individuals who have made requests to Google themselves or via reputation management companies who indicate regret at not having instructed us at the outset.
Like most law firms, we charge by the hour and our costs will depend on the factual and legal complexity of your case and the volume of material that needs to be considered. Depending on the case, the cost of reviewing/analysing the material/the legal position, taking detailed instructions, advising and drafting substantive representations to Google typically costs between £1,200-1,800 plus vat.
How do I instruct Brett Wilson LLP?
Send us an email, complete our online enquiry form or call us on 020 7183 8950. If you wish to instruct us we will arrange a consultation to take your full instructions. This can often be done over the telephone. We will review online material and advise you on the relevant issues. We will then draft detailed submissions on your behalf, which will be sent to you for your approval. Finally, these will be submitted to Google for consideration. Throughout this process we will keep you informed of all developments and answer any questions you might have.