ICO right to be forgotten appeal example
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A successful case of ICO right to be forgotten appeal
This ICO case involves an employee of a company who following a leaked email had become the target of unpleasant tabloid news articles.
Our client was employed as a manager of a company in the financial services industry. An article in a national newspaper (also published online) revealed some of the practices employed by that company and effectively had made our client a scapegoat to the company’s alleged wrongdoing.
When news broke out about the company’s alleged unfair practices, the company allowed our client to become a scapegoat and did nothing to try and defend our client as an employee of the company who simply followed manager’s instructions or the company’s practices. Following the sensation, articles appeared in a national tabloid, and our client became a national hate figure and consequently the target of anger, which was aimed at her company, but which was directed at her. Unfortunately for her, her name remained tarnished long after she left her employment.
The newspaper declined to remove the article from its website, so we applied to Google under a right to be forgotten to have links to the news article delisted from search results. Google refused. Google claimed that because our client was a manager, there was public interest in the articles about her conduct as a manager continuing to be published and linked to from Google searches. Google refused to take into account the fact that our client was simply an employee who followed her managers’ instructions to carry out the company’s policy.
Following Google's refusal to delist unfair news articles from internet searches, our specialist right to be forgotten lawyers applied to the Information Commissioner’s Office (ICO) with a request that the ICO orders Google to remove the news article from search results as the article had made unfair extensive references to our client. Google refused to remove links to the news article from search results under a right to be forgotten on the basis that the article referred to news which was still relevant and in the public interest. Following our lawyers’ application, the ICO had overruled Google’s decision having considered a long list of factors, both legal and factual.
The main factors for the success of the ICO application was that the news article referred to an event that took place whilst our client was employed by the financial services company as a manager. The ICO, having considered the relevant factors in relation to the removal request, decided it was unlikely that Google’s processing of personal data in relation to a search for our client’s name complied with the Data Protection Act. The ICO considered that our client was no longer employed by the company for over a year at the time of the application.
The search result which represented her as a boss in that company was therefore misleading. The ICO also considered that our client was acting under instructions from her supervisor but that the news article gave the misleading impression that our client had been in charge of decision making in the company during the relevant time, making our client the focus for any criticism. As a result of the information appearing in Google search result, and the news article that it linked to, our client had been subjected to some highly distressing and offensive comment online and highly diminished future employment prospects.
The ICO therefore agreed that our clients’ ability to obtain employment outweighed the public interest in the information remaining available via search results. The ICO therefore considered that the information featuring was no longer relevant and it ordered Google to remove the result within 28 days.
Google refused to accept the ICO decision to order Google to delist the news articles. Google then took the unusual step of appealing the ICO decision to an ICO senior manager. The ICO manager overturned the ICO original decision which meant that our client would have been back to square one. Our lawyers decided to successfully cross appeal to the ICO to bring the matter to a successful conclusion.
In total, the appeal process to the ICO, required no less than 4 different submissions and numerous appeals to the ICO by both Google and ourselves. The case involved numerous representations and submissions by lawyers acting for Google which had been responded to and counter argued by our own solicitors.
This goes to demonstrate that those type of cases could get highly complicated and that often, it would take the finest legal argument to tip the balance in favour of delisting articles from Google searches.