Help with a right to be forgotten
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A right to be forgotten application
On average, every right to be forgotten application has a 50% chance approximately of success. In fact, in 2014, Google reported to have rejected more than 65% of all the right to be forgotten applications they received from UK applicants and this figure has not change much since then. By contrast, help with a right to be forgotten application can increase your likelihood of success to nearly 92%.
Google's decisions as to whether to allow any right to be forgotten application, is a matter for Google's sole discretion. Whilst Google has to follow the right to be forgotten principles which have been set out in the landmark case, Google Spain SL & Google Inc v Agencia Española de Protección de Datos (AEPD) & Costeja González (“Google Spain”) having submitted right to be forgotten applications in relation to thousands of web links since 2014, it is clear that there are currently no hard and fast rules which might serve to predict an applicant’s chances of success.
However, when you compare successful right to be forgotten applications and similar rejected right to be forgotten ones, it becomes apparent that in many cases, those who received legal help with drafting and submitting their applications to Google, are more likely to succeed. The type of right to be forgotten applications that are more likely to be rejected and whose applicant and therefore most likely to benefit from legal help, are applications which relate to previous criminal convictions. Right to be forgotten applications that relate to previous criminal convictions are often rejected outright, unless there are good reasons why they should be allowed.
Generally speaking, Google's assessment of right to be forgotten applications has been inconsistent for a while now. One possible explanation for this inconsistency may be attributed to Google’s online search removal request form which on the face of it is a simple and straight forward form to complete.
The Google right to be forgotten form, comes with no guidance on how it should be completed and neither does it specify what grounds Google considers to be acceptable to justify the successful removal of search results to unwanted web pages. In any event, however, Google is likely to reject right to be forgotten applications where the application form does not fulfil some of the basic criteria, which was set out in the Google Spain case and more importantly in the GDPR provision.
Google's right to be forgotten standard form was first published in May 2014. By October the same year, Google already received 63,616 right to be forgotten removal applications but only agreed to remove 18,460. Our own data indicates that many of the rejected applications were submitted by users who did not obtain help or legal advice.
Upon close examination of a score of rejected right to be forgotten applications we have identified 3 common mistakes that people who apply for a right to be forgotten make. If you can avoid making those mistakes, it is likely that your right to be forgotten application will be as twice as more likely to succeed.
Citing defamation as the main reason for the right to be forgotten removal request is a mistake that is likely to cost you dearly. Most rejected applicants who cite defamation as the main or sole reason why their right to be forgotten application should be successful, could have been successful had the applicant sought help with their right to be forgotten request and relied instead on inaccurate data as the reason given for wanting links to articles about them removed from the internet.
The truth is, that to a large extent, defamation has little to do with the right to be forgotten under GDPR because defamation relates to reputation law rather than to data protection law. Applicants should therefore cite instead, inaccuracy of data, which is an important factor being part of the GDPR and therefore covered by the right to be forgotten.
Furthermore, by definition, it is harder to prove defamation than inaccuracy of data so whenever you believe that there is false information about you posted on the internet, cite inaccuracy of data as opposed to defamation and your right to be forgotten application will have a far higher likelihood of success.
Too many rejected right to be forgotten applications are rejected because the application, often due to lack of help, this will make the mistake of telling Google that the information on Google search is old and therefore should be removed under a right to be forgotten.
The reality is that GDPR does not impose on Google a duty to remove links to published articles because the articles are old. Old age or historic publication is never a sufficient reason to have links to the information that will make your right to be forgotten application successful.
If the articles you want removed from Google are old and you have moved on since their publication, you should cite the valid GDPR reason that the data published about you is irrelevant. You then need to explain why the data is irrelevant and why it should no longer be processed by Google
Citing unlawful use of images as a reason for removal is a common mistake by right to be forgotten applications whose applications end up being rejected. In some cases, the applicants cite various copyright, trademark and other intellectual property rights breaches as the reason why their right to be forgotten application should be successful.
The truth is that Google is not obliged under a right to be forgotten to remove images which might be protected by intellectual property rights, but which are relevant to the published article. If you wish to have articles with images featuring yourself, removed from Google searches, you should cite breach of data as opposed to the breach of intellectual property rights.
You may also cite breach of your right to private life or misuse of your private information as valid reasons for removal in your right to be forgotten application. Images featuring an individual are considered as personal data and therefore may be sufficient to facilitate removal of search links to an entire article. You should seek legal help to discuss specific rights to private life in relation to Google links to images.
Most importantly, to succeed with your right to be forgotten application, you need to cite Data Protection laws rather than defamation, intellectual property, or other laws. The most important law to mention in the application is the UK Data Protection Act 2018, which incorporates GDPR. Under the Data Protection Act, processing of data must be necessary, it must be accurate, relevant and proportionate and it must also not be excessive.
If the webpage about you contains information which is untrue or defamatory, then you may state in your right to be forgotten application that the data is irrelevant or inaccurate because it is false. Similarly, if the offending web page contains old but still accurate information, you may state that the information is irrelevant or excessive, particularly if it is in relation to a minor criminal conviction.
Defamatory or old information might also be considered disproportionate if the information is given too much prominence on search results or if it causes you disproportionate hardship. If the webpage you wish to remove from Google searches includes an image of yours, which you object to being reproduced, you may cite infringements of your right to private life.
Likewise, if someone takes an image of you without your permission and uploads it to the internet, it may be removed under a right to be forgotten.
If Google rejects your right to be forgotten application, seek legal advice. Your lawyer will provide you with the help you need to appeal Google decision or to request a review by the Information Commission Office.
Alternately, your lawyer can draft for you a formal GDPR Notice which they will serve on Google lawyers in California, and if this still does not resolve the issue, you may be advised to file a claim for breach of data against Google. As specialists in internet law, we have dealt with right to be forgotten cases relating to thousands of unwanted Google search results.
We have been successful in removing unwanted information from the internet for nearly all of our clients. Based on our broad experience in these matters we will be able to help your right to be forgotten application to stand a much higher likelihood of success.