The principles

The judgment rests on three well established principles. First, individuals have a right that data-processing systems must respect their right to privacy. Second, an individual’s personal data must be processed fairly, which means ensuring that any data collected must be accurate and, where necessary, kept up to date. Third, an individual has the right to request that any inaccurate personal data is either erased or rectified. As a consequence, any information about an individual that is out of date, inaccurate or no longer relevant should be taken out of search results if the person requests it. Note the ruling can only be used to remove reference to offending blogs and posts from search engine results. It cannot be used to have the actual blogs or posts removed.

Can the ruling be used by surgeons to remove articles from Google searches?

The surgeon will first need to examine how far continued accessibility to the information by the public impacts on the surgeon’s private life – including his or her reputation. Then the surgeon needs to examine the competing public interest of whether the public should have continued access to the information regardless of the fact that it might be old, inaccurate or irrelevant. The information will only be removed if the impact on the surgeon’s privacy is greater than the public’s right to access it.

The public interest

In essence, the usefulness of the judgment will come down to how successfully surgeons can argue the case for the protection of their reputation against the public interest of maintaining disclosure. While there is a public interest in the freedom of speech there is a corresponding public interest in the protection of private information. Everyone, whether a public figure or not, needs a private space protected by law. The protection of an individual’s privacy and their autonomy over their private information is just as much a public good as the freedom of expression. For this reason, each request to remove material from Google’s search engine needs to be argued on its own merits.

The assessment of whether the information should be removed from a search engine is not determined by its desirability but by its accuracy. Such subjective criteria as to whether the information is prejudicial to the individual has no place in the court’s assessment which is rooted in the more objective criteria of, ‘“inaccurate, irrelevant or out of date”.

What next?

The UK government is opposed to the right to erasure and will seek to water down the new provisions. A recent report by the House of Lords home affairs, health and education EU sub-committee agrees with the government’s stance, stating the right to be forgotten is ‘misguided in principle and unworkable in practice’ and ‘must go’. So, the opportunity presented to surgeons by the judgment may only be available for a limited period of time.
Magnus Boyd is a reputation protection specialist and partner at the law firm Hill Dickinson