Savage v Data Protection Commissioner and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice White
• Judgment Date: 09 February 2018
• Neutral Citation: [2018] IEHC 122
• Docket Number: [2016/224CA/239CA],[2016 No. 224 CA & 2016 No. 239 CA]
• Court: High Court
• Date: 09 February 2018

[2018] IEHC 122

THE HIGH COURT

DUBLIN CIRCUIT COUNTY OF DUBLIN

White Michael J.

[2016/224CA/239CA]

BETWEEN

MARK SAVAGE

RESPONDENT/ APPELLANT

AND

DATA PROTECTION COMMISSIONER

FIRST APPELLANT/RESPONDENT

AND

GOOGLE IRELAND LIMITED

SECOND APPELLANT/NOTICE PARTY

Information Technology – Data Protection Acts 1998 and 2003 – Removal of URL – Fundamental rights – Public interest – Automatic transposition of data from webpage

Facts: The appellants filed an appeal against the order of the Circuit Court for directing the first appellant/Data Protection Commissioner ('DPC') to issue an enforcement notice to the second appellant who was not a party to the original proceedings. The second appellant contended that the learned Circuit Court had made an error in law for holding that the subject URL title bore the appearance of a verified fact. The issue between the parties related to the search results published on the website of the second appellant that was defamatory to the respondent. The second appellant claimed that the disputed search results were neither authored nor edited by it and it was merely a transposition of automatic data from the webpage, and that was an opinion expressed by a poster and not a verified fact.

Mr. Justice White Michael allowed the appeal and vacated the order of the learned Circuit Court judge. The Court noted that the learned Circuit Court had applied the wrong legal test and considered only the contents of the URL link and not the original data posted by the poster in another website. The Court held that the learned Circuit Court did not find any error of law on the part of the DPC. The Court opined that it could not mandate the second appellant to engage in an editing process before providing search results on its website as it was an automated procedure.

JUDGMENT of Mr. Justice White delivered on 9th of February, 2018

1 This is an appeal on points of law only from an order of the Circuit Court of 25th October 2016, pursuant to the Data Protection Acts 1998 and 2003.

2 The Circuit Court allowed the appeal of Mark Savage (in this judgment the Respondent) from a ruling of the Respondent the Data Protection Commissioner of 26th March, 2015 (in this judgment referred to as the First Appellant). The Notice Party Google Ireland Ltd has also appealed. (In this judgment referred to as the Second Appellant)

3 The First Appellant appealed by Notice of Appeal of 3rd November, 2016 on the following grounds,

(i) The Court erred in law in directing the Commissioner to issue an enforcement notice. The Circuit Court has no jurisdiction on an appeal to direct that an enforcement notice be issued by the Commissioner.

(ii) The Court erred in law in directing the Commissioner to issue an enforcement notice to a party that was not a party to the proceedings; namely Google Inc. The Circuit Court has no jurisdiction on an appeal to direct that an enforcement notice be issued by the Commissioner to a person who is not a party to the Circuit Court Appeal, namely Google Inc.

(iii) The court erred in law in its application of the test outlined in Orange Communications Limited v. Director of Telecommunications Regulations & Anor (No 2) [2004] 4 I.R. 159 to the Commissioner's decision.

(iv) The court erred in law in its interpretation an application of the decision of the Court of Justice of the European Union delivered on 13th May, 2014, in Google Spain v. AEPD & Mario Costeja Gonzalez ( Case C-131/12) (the Google Spain Decision).

(v) The court erred in law in holding that the Commissioner made a serous error in her application of the Google Spain decision.

(vi) The court erred in law in finding that the content of the URL title was factual in nature and not an expression of opinion.

(vii) The court erred in law in holding that the content of the URL is to be presumed to be a statement of fact in the absence of quotation marks or some other indication expressly identifying it as opinion.

(viii) The court erred in law in evaluating whether the content of the URL title was factual in nature or an expression of opinion without having regard to the contents of the webpages to which the URL directs internet users.

(ix) The court erred in law in circumstances where there was no factual basis for a finding that the content of the URL was inaccurate, excessive or out of date.

(x) The court erred in law in finding that the content of the URL title was inaccurate.

(xi) The court erred in law in its determination that the accurate transposition of a statement of opinion from a posting or thread to a URL title or heading had the effect of elevating such statement of opinion to the status of accurate data.

(xii) The court erred in law in its balancing of the competing interests in play as required by the Google Spain decision. In particular, the court erred in failing to give due or any weight to the necessity to protect freedom of expression.

(xiii) The court erred in law in failing to give due weight or any weight to

• The context in which that information was published (i.e. as part of an online exchange of views in which Mr. Savage himself had participated in an active way, posting three separate entries); and

• more especially, the fact that the expressions of opinion posted to the relevant webpages (including the specific content of the URL title) were clearly prompted by, and connected with, material that had been put into the public domain by Mr. Savage as an integral part of the platform he was presenting to voters in the course of the elections for Fingal County Council.

4 The Second Appellant appealed by Notice of Appeal of 1st November 2016 on the following grounds,

(i) The learned Circuit Court Judge erred in law in determining the appeal of the Data Protection Commissioner's decision made by Mr. Savage (the 'Respondent') on the basis that the URL title bore the appearance of a verified fact.

(ii) The learned Circuit Court Judge erred in law in determining that the test of whether data are opinion rather than fact is dependent on whether the data have the appearance of verified fact.

(iii) The learned Circuit Court Judge erred in law in determining that the URL title was a matter of fact rather than an expression of opinion.

(iv) The learned Circuit Court Judge erred in law in determining that the accurate transposition of a statement of opinion from the underlying webpage to the URL title elevated such opinion to the status of apparently accurate data.

(v) The learned Circuit Court Judge erred in law in determining that the URL title was inaccurate data.

(vi) The learned Circuit Court Judge erred in law in determining the fact/opinion status of the URL title in isolation, and the accuracy thereof, without reference to the content of the underlying webpage linked to by that URL.

(vii) The learned Circuit Court Judge erred in law in determining that an expression of opinion was required to be highlighted by the use of quotation marks or parentheses.

(viii) The learned Circuit Court Judge erred in law in her application of the Orange/Nowak test to the Data Protection Commissioner's Decision.

(ix) The learned Circuit Court Judge erred in law in not carrying out an appropriate balancing of interests as required by the Court of Justice of the European Union in the Costeja case.

The Relevant Legislative Provisions

5 The relevant act is the Data Protection Act 1988, s. 10 deals with the enforcement of data protection and states:-

'(1)

(a) The Commissioner may investigate, or cause to be investigated, whether any of the provisions of this Act have been, are being or are likely to be contravened by a data controller or a data processor in relation to an individual either where the individual complains to him of a contravention of any of those provisions or he is otherwise of opinion that there may be such a contravention.

(b) Where a complaint is made to the Commissioner under paragraph (a) of this subsection, the Commissioner shall—

(i) investigate the complaint or cause it to be investigated, unless he is of opinion that it is frivolous or vexatious, and

(ii) as soon as may be, notify the individual concerned in writing of his decision in relation to the complaint and that the individual may, if aggrieved by his decision, appeal against it to the Court under section 26 of this Act within 21 days from the receipt by him of the notification.

(2) If the Commissioner is of opinion that a person, being a data controller or a data processor, has contravened or is contravening a provision of this Act (other than a provision the contravention of which is an offence), the Commissioner may, by notice in writing (referred to in this Act as an enforcement notice) served on the person, require him to take such steps as are specified in the notice within such time as may be so specified to comply with the provision concerned.

(3) Without prejudice to the generality of subsection (2) of this section, if the Commissioner is of opinion that a data controller has contravened section 2 (1) of this Act, the relevant enforcement notice may require him—

(a) to rectify or erase any of the data concerned, or

(b) to supplement the data with such statement relating to the matters dealt with by them as the Commissioner may approve of; and as respects data that are inaccurate or not kept up to date, if he supplements them as aforesaid, he shall be deemed not to be in contravention of paragraph (b) of the said section 2(1).

(4) An enforcement notice shall—

(a) specify any provision of this Act that, in the opinion of the Commissioner, has been or is being contravened and the reasons for his having formed that opinion, and

(b) subject to subsection (6) of this section, state that the person concerned may appeal to the Court under section 26 of this Act against the requirement specified in the notice within 21 days from the service of the notice on him.

(5) Subject to...