Savage v. Data Protection Commissioner and Google Ireland Ltd, 9 February 2018

• Judgment Date: 09 February 2018
• Neutral Citation: [2018] IEHC 122
• Case Outcome: Approved
• Docket Number: 2016 239 CA
• Year: 2018
• Issuer: High Court

[2018] IECH 122

THE HIGH COURT

DUBLIN CIRCUIT COUNTY OF DUBLIN

[2016/224CA/239CA]

BETWEEN

MARK SAVAGE

RESPONDENT/ APPELLANT

AND

DATA PROTECTION COMMISSIONER

FIRST APPELLANT/RESPONDENT

AND

GOOGLE IRELAND LIMITED

SECOND APPELLANT/NOTICE PARTY

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 Oc tober 2016, pursuant to t he Data Protec tion

Act s 1998 and 2003.

2. The Circuit Court allowed the appeal of Mark Savage (in this judgment t he Respondent) from a ruling of the Respondent the Data

Protect ion Commissioner of 26th Marc h, 2015 (in this judgment referred to a s the F irst Appellant). The Notic e Party Google Ireland Ltd

has also appealed. ( In t his judgment referred to as the Sec ond Appellant)

3. The F irst 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 notic e be issued by the Commissioner.

(ii) The Court erred in law in directing the Commissioner to issue an enforc ement notice t o a party that was not a party t o

the procee dings; namely Google Inc. The Circuit Court has no jurisdiction on an appeal to direct t hat an enforc ement

notice be issued by the Commissioner to a person who is not a party to t he Circuit Court Appeal, namely Google Inc.

(iii) The court erred in law in its applicat ion of the test outlined in Orange Communications Limited v. Director of

Telecom munications Regulations & Anor (No 2) [2004] 4 I.R. 159 to t he Commissioner’s decision.

(iv) The c ourt erred in law in its interpretation an applicat ion of the decision of t he Court of Just ice of the European Union

delivered on 13th May, 2014, in Google Spain v. AEPD & Mario Coste ja 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 c ourt erred in law in finding that the content of the URL title was fac tual in nature and not an expression of

opinion.

(vii) The c ourt erred in law in holding that the c ontent of the URL is to be presumed to be a stat ement of fac t in the

absence of quotat ion marks or some other indication expressly identifying it as opinion.

(viii) The court e rred in law in evaluating whether the c ontent of the URL title wa s fac tual in nature or an expression of

opinion without having regard to the c ontents of the webpages t o which the URL directs internet users.

(ix) The court erred in law in circumstances where t here was no fa ctual basis f or a finding that t he cont ent of the URL

was inacc urate, exc essive or out of date.

(x) The c ourt erred in law in finding that the c ontent of the URL title was inacc urate.

(xi) The court erred in law in its determination that the ac curate transposition of a stat ement of opinion from a posting or

thread to a URL title or heading had the effec t of elevating suc h stat ement of opinion to the s tatus of ac curate dat a.

(xii) The court erred in law in its balancing of the c ompeting interests in play as required by the Google Spain decision. In

particular, the c ourt erred in failing to give due or any weight t o the necessity to prote ct freedom of expression.

(xiii) The c ourt erred in law in failing to give due weight or any w eight to

• The c ontext 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 ac tive way, posting three se parate entries); and

• more especially, the fac t that t he expressions of opinion posted to t he relevant we bpages (including the spec ific

content of the URL title) were c learly prompted by, and c onnect ed with, material that had bee n put into t he public

domain by Mr. Savage a s an integral part of t he platform he was presenting t o voters in t he course of the elec tions

for Fingal County Council.