08 Sep 2021
By Bethany Buchanan, Trainee Solicitor (NQ Solicitor in waiting), Blackadders LLP
With an estimated 6.9 billion searches per day, Google is the largest search engine provider in the world. With so much information readily available at the click of a button, it’s no wonder the most common thing people do when looking for information about another person is an online search. With a number of other search engines available such as Yahoo and Bing, the number of searches that can be done on a person are endless and for anyone who has received unfavourable press or social media coverage, these search results can be problematic.
It is now common place for potential new employers, clients, journalists or new acquaintances to start with an online Google search before they have even met with a person face to face. If the search results produce a spate of negative information about you, the reputational impact of this can be difficult to overcome.
Individuals have often relied on defamation or privacy law to deal with the reputational impact of negative online information, however, with an increased reliance on online searches in the world of today these avenues are often found wanting. Examples of this could be: where the story has gone ‘viral’; the website publishing the information is outside the UK; or, where the information has been lawfully published.
The right to be forgotten, also known as the right to erasure, became EU/UK law as part of the General Data Protection Regulations (GDPR)/Data Protection Act introduced in 2018.
This legislation gave individuals the right to request the erasure of their personal data and that data about them is removed from an organisation’s database – regardless of the reasons. When a right to be forgotten request is received, companies have a legal obligation to comply with the law without undue delay – they must act upon a valid request as soon as it is made or face financial penalties from the UK’S data protection authority, The ICO (The Information Commissioners Office). Under the legislation this can be as much as 4% of a company’s turnover, or £17.5 million.
Individuals have had the right to be forgotten since the ECJ (European Court of Justice) ruling of 13 May 2014 in Google Spain SL v Agencia Española de Protección de Datos (AEPD). In this case, the court found that certain users have the right to ask search engines to remove results for searches that include the person’s name. In order to qualify to have searches removed from search engines, the results shown would need to be inadequate, irrelevant, no longer relevant, or excessive. You cannot request that information is removed just because you do not like what you see.
Once a request has been made, the search engine provider will assess each individual request and balance the rights of the individual to control his or her personal data with public’s right to know and distribute information. This will include looking at whether the results include outdated information about an individual’s private life. The search engine provider will also look at whether there’s a public interest in the information remaining in the search results—for example, if it relates to financial scams, professional malpractice, criminal convictions or an individual’s public conduct as a government official (elected or unelected). These are difficult judgements and it may be in some cases that, as private organisations, the operators of search engines are not always best placed to decide on the request. Accordingly, if you disagree with the decision reached, you can contact the ICO to take matters further.
Those operating search engines do not have to apply the right to be forgotten globally and are only required to remove links from its search results in Europe – and not elsewhere – after receiving an appropriate request.
It is believed that Google has received over 1 million requests since the 2014 ruling, asking for around 4.3 million links to be removed. Around 47% of those links have been de-listed. There is no on-size fits all approach to search engine removal requests and each request will heavily depend on the individual circumstances of each case. The key considerations will be the type of information to be removed, the conduct of the person making the request and whether the information is still relevant. It is important that anyone looking to make a search engine removal request, obtains appropriate guidance on how the right to be forgotten applies in their individual circumstances as soon as they become aware of the information being online. By doing so will ensure you don’t take any action which is detrimental to your case as well as increasing the likelihood of a successful application.
If you need any advice regarding the removal of unwanted content online, please get in touch with Blackadders’ Dispute Resolution team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.
