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Jon Baines comments on the first 'Right to be Forgotten' High Court judgment

Posted on 13 April 2018

Jon Baines comments on the first 'Right to be Forgotten' High Court judgment

The High Court has today (13 April 2018) handed down judgment in an important case involving Google and "the right to be forgotten", and ruled that Google is not required to delist search results relating to the spent conviction of one of the claimants (identified only by the pseudonym "NT1") but in the other case ("NT2"), it is. The claims were brought on the basis that Google was in breach of its obligations under the Data Protection Act 1998 (DPA) and that its actions amounted to the tort of misuse of private information.

Although the forthcoming General Data Protection Regulation (GDPR) codifies a qualified "right to erasure", it is often overlooked that the same right exists under the current law, at least since the judgment of the Court of Justice of the European Union (CJEU) in the 2014 "Google Spain" case. Despite this, there has been relatively little litigation thus far, and the NT1 and NT2 cases were the first going to full trial to be ruled on in the High Court.

Mr Justice Warby – after first holding that Google could not rely on the very broad “journalism exemption” in the DPA - followed the CJEU's approach in Google Spain, balancing the fundamental rights to protection of personal data with the rights of freedom of expression and freedom of information. On the facts, this led to the two different outcomes.

Separate to this case, it is worth noting that not all applications for delisting have to be litigated: information published by Google itself reveals the extent to which individuals have been exercising their rights in this regard – since 2014 it has received more than 650,000 requests to remove approximately 2.43 million URLs from its index, and has complied with 43% of them.

In light of today's ruling, it seems clear that the courts will judge applications such as this on the specific facts, giving close scrutiny to the nature and sensitivity of the processed data and to the interest of the public in having access to the particular information. It is quite likely that that there will be an increase in the number of successful requests for delisting, as individuals take note of the court's analysis, and assert their strong and potentially enforceable rights to have out-of-date or inaccurate information about them on the internet made more difficult, at least, to find.

Jon was also quoted in the New Law Journal.

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