Google can't escape 'right to be forgotten' damages, privacy regulator tells UK court

2 March 2018 4:26pm
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1 March 2018. By Vesela Gladicheva.

Google can't hide behind existing EU laws to avoid paying Internet users damages if it fails to honor valid requests to take down content from search results, the UK's data-protection authority told a London court today.

The Information Commissioner's Office made the comments during a hearing in the first dispute over the "right to be forgotten" principle to reach trial in the UK. Two unnamed businessmen, known only as NT1 and NT2, are suing Google in the High Court in London for the right to have links to information about their old convictions removed from the search engine.

Mountain View, California-based Google has previously argued that EU rules that limit online intermediaries' responsibility for the information they carry means it wouldn't have to pay compensation.

"[Search engines] must be subject to the full gamut of legal remedies, including potential compensation," when they receive valid delisting requests but continue to unlawfully show the information, said Anya Proops on behalf of the ICO.

Google can't rely on the EU's E-Commerce Directive as a defense, because that law doesn't apply to the processing of personal data, Proops said. Specifically, the web giant can't rely on a "caching defense" under that law in right-to-be-forgotten cases, she said.

If Google is allowed to skirt its responsibility to pay damages, that would create "substantial problems" for the ICO, Proops told Judge Mark Warby.

The actions in the High Court stemmed from a landmark EU ruling in 2014 that forced Google and other search engines to remove the names of individuals who don't want to appear in search results. Companies have to comply with requests if the information is no longer necessary, no longer relevant, or is excessive in relation to the original reasons for which it was collected.


The ICO's lawyer said that compensation for Internet users has a "disciplining effect," and redresses distress they suffered if Google handled their data unlawfully.

Google could only justify escaping liability to pay compensation while it considers delisting requests, Proops said.

Exposure to paying compensation "substantially increases the pressure on Internet search engines to deal with the right to be forgotten," Proops said. Companies "must feel the pressure to act compliantly."

"A weak compliance culture has a knock-on effect on the courts and regulators," as they would inherit Google's responsibility to weigh the right to privacy against the right to freedom of expression, Proops said.

Journalistic exemption

Google has also argued that its indexing activities amount to processing data for journalistic purposes, which frees it from responsibility to delist the links at issue in the case before the High Court.

That position is "wrong," Proops said. If the court sides with Google on this point, and if the search engine refuses to delist notified content, the ICO wouldn't be able to do anything about it, "unless it goes to the courts."

"The ICO would have no effective enforcement powers," the lawyer said.

Spent convictions

Lawyers for claimant NT1 have argued that Google's refusal to delist information about him runs counter to the spirit of a UK law from 1974 on spent convictions. A spent conviction under that law can be effectively ignored after a specified amount of time.

The ICO's lawyer today said that the fact a conviction is spent should "weigh heavily in the balance."

Google may use a public-interest purpose and keep relevant links only if evidence shows the individual is actively misleading the public. The principle of rehabilitation is "immensely important," Proops said.  

The trial continues.

The case number is TLQ17/0206 NT1 v Google LLC & ors.

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