In its first significant decision on the right to be forgotten, the Irish High Court has recently adopted a practical approach which gives an indication as to how the law in this growing area might develop in Ireland, particularly in the context of the GDPR and the Irish Data Protection Act 2018.
The right to be forgotten allows individuals to request that information relating to them be removed from search engines where that information is inaccurate, inadequate, irrelevant or excessive.
OPINION VS FACT
In Savage v Data Protection Commissioner and Google, the Irish High Court refused to order Google to delist an online thread describing an election candidate as homophobic. As part of a campaign for local election, candidate Mark Savage produced an election leaflet describing himself as an advocate for family values and condemning "the lewd behavior of Gay Perverts cavorting in flagrante on [Donabate] beach in broad daylight." The leaflet was posted by a third party to the online discussion forum, Reddit.com under the heading "North County Dublin's homophobic candidate". Savage complained that when his name was searched on Google, the result directed users to this page. He said this was defamatory and he objected to being labelled homophobic.
The Irish High Court refused to order Google to delete the listing as the search result was not inaccurate as to fact, since it referred only to an expression of opinion. The Court made clear that, when ascertaining whether a search result represents an opinion or fact, the result must be read in the context of the underlying thread or article. Here, it was clear from the underlying discussion thread that the original post was an expression of opinion.
This practical approach will be welcomed as an earlier decision of the Circuit Court had caused concern. The Circuit Court found that there was an obligation on search engines to distinguish expressions of opinion in search results by using quotation marks or parentheses. The High Court's more practical decision reflects the fact that search engines do not exercise an editing function, but rather automatically collate information for search and retrieval purposes.
REMOVAL OF INACCURATE INFORMATION - UK POSITION
Search engines can expect, however, to be required to remove search results containing information that is inaccurate as to fact. A recent decision of the English High Court, NT1 and NT2 v Google, is a useful illustration of how a court might...