How to make a successful right to be forgotten application
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On 12 October 2014, Google reported to have rejected more than two thirds of all the ‘right to be forgotten’ applications they received from UK applicants. By contrast, Cohen Davis has obtained nearly 92% success rate with its right to be forgotten applications to Google and the ICO.
Google’s decision to comply with any such applications is of course at their discretion (albeit in accordance with the landmark court ruling made in Google Spain SL & Google Inc v Agencia Española de Protección de Datos (AEPD) & Costeja González (“Google Spain”) in May 2014) and there are currently no hard and fast rules which might serve to predict an applicant’s chances of success. Indeed, when comparing some successful applications against those which Google rejected, it becomes quite apparent that (at least on the face of it) even Google does not appear to maintain a consistent approach in how it deals with each right to be forgotten request.
A Google Search result to an article about a previous criminal conviction might just as readily be removed based on one person’s application as it might be rejected based on someone else’s application.
One possible explanation for this inconsistency may be attributed to Google’s online ‘search removal request’ form that applicants are required to submit. The form, which is available here 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.
It does appear however that Google will refuse to remove search results where a completed application form fails to fulfil the basic criteria set out in the Google Spain case mentioned above.
So what are the most common errors made by applicants invoking their right to be forgotten?
Google first made its right to be forgotten form available to UK users on 29 May, 2014. By October 14, it received 63,616 removal applications but agreed only to remove 18,460. Our own data indicates that many of the rejected applications were submitted by users who did not first obtain legal advice. Upon close examination of a score of rejected right to be forgotten applications we have identified 3 common errors that are likely to contribute to a failed application. These are as follows:
1. Citing ‘defamation’ as a sole reason for removal: most rejected applicants cited defamation as the main or sole reason why their right to be forgotten application should be successful. The truth is that to a large extent defamation has nothing to do with the right to be forgotten under European law and so Google is not obliged to remove unwanted search results even if they might well contain defamatory material.
2. Citing ‘historical information’ as a reason for removal: many rejected applicants cited lapse in time as the reason why their right to be forgotten application should be successful. The truth is that a right to be forgotten does not impose on Google a duty to remove links to old information.
3. Citing ‘unlawful use of images’ as a reason for removal: some rejected applicants cited various copyright, trademark and other intellectual property 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.
How do I make a successful right to be forgotten application?
Most importantly 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 1998, which is derived from European law. Under section 1 the processing of the data must be “necessary”, it must be “relevant” and “proportionate” and it must “not be excessive”. If the webpage about you contains information which is untrue or defamatory, then you may state in your application that the data is “irrelevant” to you under the Data Protection Act because it is false and therefore is wrongly attributed to you.
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 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.
What if my application under a right to be forgotten is refused?
If Google rejects your application, your next step should be to ask the Information Commission to look into the matter or issue Google with a formal letter under section 10(3) of the Data Protection Act 1998 so that Google ceases the processing of your data. If Google still does not respond to this, the letter may be followed by legal action. The first few cases are currently going through the courts.
How can Cohen Davis help?
As specialists in internet law, we have dealt with many right to be forgotten cases for our clients and we have been successful in removing unwanted information from the internet for many. Based on our broad experience in these matters we will be able to assist you in all aspects of your right to forgotten matter, from completing Google’s initial application form, to serving appropriate notices and if needed representing you at court.