First 'right to be forgotten' case against internet search engines heard in the High Court

First 'right to be forgotten' case against internet search engines heard in the High Court

The Data Protection Commissioner and Google have urged the High Court to overturn a finding in favour of a man in the first “right to be forgotten” case here concerning internet postings.

If the Circuit Court ruling in favour of Mark Savage is upheld, it will impose an “intolerable and unworkable” burden on Google and other search engines, Cian Ferriter SC, for Google Inc and Google Ireland, argued.

Search engines may have to review billions of searches daily to decide if quotation marks, in line with the Circuit Court decision, must be placed around posts considered to be “opinion” rather than fact, he said.

Mr Savage, Lios Cian, Swords, an Independent candidate in the 2014 local elections in north Co Dublin, won orders from the Circuit Court last October he was entitled to have information posted about him on Reddit removed by Google.

Mr Savage objects to a thread on Reddit describing him as “Mark Savage - North County Dublins (sic) homophobic candidate”.

The thread arose from election leaflets handed out during his campaign referring to “gay perverts cavorting en flagrante on the beach on broad daylight”.

The leaflet contended the “hedonistic” activity of “cruisin (sic) ” denigrates the institution of marriage.

In postings responding to what was said on Reddit, Mr Savage argued being “disgusted” by gays is very different to hating them and objected to the term “homophobic”. He complained the link to the thread was listed in Google’s search results when his name was entered into the search engine.

After Google refused to re-index the thread, he complained to the Data Protection Commissioner who rejected the complaint on grounds an internet user seeking out information on the local elections is unlikely to consult an online discussion forum as a source of verified facts.

He appealed the Commissioner’s finding to the Circuit Court which upheld his appeal. Judge Elma Sheehan said she considered it likely internet users would consult online discussion forums such as Reddit as a source of verified facts and ruled Mr Savage’s fundamental rights and legitimate interests were prejudiced.

The appeal by the Commissioner and Google Ireland and Google Inc, notice parties to the case, against that finding opened today before Mr Justice Michael White.

It involves interpretation of provisions of the Data Protection Acts and a range of legal decisions, including a 2014 case, the ‘Google Spain’ case. That established the “right to be forgotten” – where a person can seek to have personal data held by a third party web page delisted from a data controller’s search engine.

In arguments, Paul Anthony McDermott SC, for the Commissioner, said Reddit is “just a talking shop” where random members of the public say the first random thoughts that come into their head. Mr Savage did not object to Reddit and agreed it was in the public interest the bulletin board remain in place, he said.

He agreed with the judge Mr Savage’s concerns include a potential employer could find the link if they googled him but said an employer could see that just expressed people’s opinions .

Mr Savage cannot be protected from the leaflet as he had produced it and was unable to assert a personal interest that defeated the public interest in being able to access the information, he argued.

The Circuit Court failed to establish any serious legal error in the Commissioner’s decision and instead effectively disagreed with the Commissioner’s view which was no basis to overturn it, he argued. There was nothing legally wrong with the finding this was opinion and not fact.

In his arguments, Mr Ferriter said the Circuit Court decision involved “fundamental errors” of law and the finding about quotation marks went “a million miles beyond” the Google Spain findings.

Mr Savage, counsel added, is not without remedies, including defamation and has initiated defamation proceedings against Google Ireland and a named individual.

The court must balance the rights of freedom of expression against the rights of a data subject and especially when the actual subject matter of this complaint was an exchange of opinions and views, counsel said. This was particularly the case when the genesis for this discussion was Mr Savage’s own leaflet.

The case continues tomorrow.

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