By EDRi

On 24 December 2015, the Amsterdam District Court delivered a new ruling on the “right to erasure” for personal search results on Google (known to some as the “right to be forgotten”). In the Netherlands, this right has thus far been interpreted restrictively, with courts emphasising the importance of freedom to access information online. This new case is no exception. Once again, the erasure request was rejected.

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The facts of the case were as follows: the claimant is a journalist who in 1999 was found to have committed plagiarism by copying four sentences from an online source without attribution. Now, when searching for the claimant’s name on Google, one of the first results is an article from the NRC newspaper describing his plagiarism. The claimant did not consider the article’s content to be untrue or unlawful and declined to request any amendment or rectification by NRC. However, citing harm to his professional reputation, he requested the delisting of this article from Google searches that used his name. After Google refused his initial requests, he brought his case before the Amsterdam District Court. The claimant submitted the following arguments in support of his claim. Firstly, the article was of minimal public interest and no longer relevant, since the plagiarism described involved a minor amount of text, was not committed intentionally and occurred over 16 years ago. Secondly, the phrasing of the NRC article, and its title in particular, suggested a more grave ethical violation actually occurred, so that the search result had a disproportional impact on his professional reputation. Third, the article takes op a prominent position in Google’s search results, while many articles arguing in support of the claimant do not. Claimant also argued that, as a journalist, he did not qualify as a public figure.

The Amsterdam court considered that, in light of the important societal role of search engines in providing access to information, delisting requests should be considered with restraint – a reasoning also found in previous Dutch case law on the right to erasure. In determining whether the search result in question was “disproportional or no longer relevant” as determined by the CJEU, the following case-specific circumstances were taken into account. The court found that plagiarism, even in minor forms, is considered a serious transgression in journalistic circles. Furthermore, the claimant continued to work as a journalist, so that a public interest remained in the accessibility of this information. Here, the Court referenced the Article 29 Working Party’s guidelines on the implementation of Google Spain, which state that: “Information is more likely to be relevant if it relates to the current working life of the data subject”. According to the Court, the public in general, and future employers in particular, should be able to reach their own conclusions based on all relevant information. This informed the Court’s reasoning that, while the article may have been published 16 years ago, it could still have continued relevance. (Coincidentally, the disputed publication in Google Spain v. Costeja Gonzalez was also 16 years old at the time of the CJEU’s judgment.)

While the judgment contains numerous arguments supporting the public interest in freedom of information, it does not directly address the countervailing privacy-related interests and fundamental rights invoked by the claimant. His right to privacy and the alleged harm resulting from Google’s processing are not discussed in any depth. In sum, the judgment comes down rather one-sidedly in favour of freedom of information. While some may be disappointed at the apparent lack of regard for privacy-related considerations, the restraint espoused by Dutch courts may assuage some fears regarding potential censorship. Google’s willingness to take action before Dutch courts indicates a capacity to assess the appropriateness of incoming de-listing requests and, where necessary, to defend that assessment in court, apparently without fear of being subject to disproportionate punishments for failing to act when they did not feel that this was necessary.

Amsterdam District Court 24 December 2015, ECLI:NL:RBAMS:2015:9515 (in Dutch)
http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBAMS:2015:9515

Article 29 Working Party, Guidelines on the implementation of the Court of Justice of the European Union judgement on ‘Google Spain and Inc v. Agencia Espanola de Protecction de Datos (AEPD) and Mario Costeja Gonzalez
http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/wp225_en.pdf

Court of Justice of the European Union 13 May 2014, Case C-131/12, Google Spain and Inc v. Agencia Espanola de Protecction de Datos (AEPD) and Mario Costeja Gonzalez, ECLI:EU:C:2014:317
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62012CJ0131

On previous Google Spain­-case law in the Netherlands:
S. Kulk & F.J. Borgesius, ‘Freedom of Expression and ‘Right to Be Forgotten’ Cases in the Netherlands after Google Spain’, European Data Protection Law Review 2015-2, p. 113-125
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2652171

(Contribution by Paddy Leersen, Intern at EDRi)

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