More “right to be forgotten” confusion

In August 2015, the UK’s data protection Commissioner (the Information Commissioner) published a press release on implementation of the Google/Spain case that led to widespread confusion. Given that the story was about the de-linking of stories about stories that had been de-linked as a result of that case, maybe this is not entirely surprising!

The headline of the press release proclaimed that “ICO (Information Commissioner’s Office) orders removal of Google search results”. This is not, however, accurate – the order only refers to the searches which use an individual’s name. Searching for any other term that would have previously resulted in the articles appearing in Google’s search results will still lead to Google finding those articles. So, the search results have not been removed.

Previously, individuals had complained that searches on the basis of their name were producing results that were irrelevant or out of date. On the basis of these complaints, Google had agreed that its processing of the personal data (the names) of the complainants was, indeed, unfair or out of date. In line with the Google/Spain ruling, they amended their systems so that this unfair situation was brought to an end.

Subsequently, various articles were written about the web pages whose search results had been modified. Some of these again included the names of the individuals concerned and details of the original story – even though there were clear grounds for believing that this was unfair to the named individuals. This led, unsurprisingly, to some of the individuals complaining again to Google that being “found” in relation to these new articles was equally damaging to them as the original stories. For reasons that are not immediately obvious, Google, having previously agreed that linking those individuals with that story was unfair or out of date, decided that linking the individuals with that story again was neither unfair nor out of date.

As a result of Google’s refusal to act consistently, the individuals complained to the Information Commissioner who, very unsurprisingly, decided that Google cannot hold two opposing views simultaneously, and ordered de-linking of the individuals’ names with the search results.

In conclusion, and for the avoidance of all doubt:

• The Information Commissioner has not asked for the removal of the articles from Google’s search index.
• The articles will not be removed from Google’s search index
• The Information Commissioner would not have (and legally could not have) become involved at all if the articles had not mentioned the individuals by name.
• There is no suggestion that Google should act spontaneously in such cases. If there is an article of this kind in the future and if the injured individual complains, Google is expected to remain consistent in its view that the linking of the individual with the web page is unfair.

Google is consistently inconsistent in relation to this issue. It opposes global implementation of the removal of unfair search results linked to individuals’ names, but supports the global implementation of unfair search results when this involves “revenge porn”. It opposes the removal of unfair search results linked to the names of people, but supports the removal of unfair search results linked to makers of pies and pastries.