Abstract
This chapter comprehensively illustrates the recent status of the right to be forgotten in the UK and unveils the significance of the changes caused by recent developments. Particularly, the latest reforms in both domestic and international law have had a drastic impact on the application of the right to be forgotten. With the General Data Protection Regulation (GDPR) scheduled to have direct effect in all EU member states, the Government introduced the Data Protection Act (DPA) 2018 in order to retain the regulation post-Brexit. Significantly, the GDPR emphasises the need for a statutory right to be forgotten in Article 17, which goes beyond what was guaranteed under the old legal framework in the UK. In addition, the crucial judgment of NT1 and NT2 v Google LLC handed down by the High Court in 2018 established and clarified under which circumstances a person can successfully ‘erase’ unwanted information from the digital landscape under UK law. It further contains novel and significant conclusions as to how UK courts should balance out the different interests involved in a right to be forgotten case. By drawing upon these developments in both legislation and case law, this chapters provides a unique overview of how the right to be forgotten has been conceptualised over time and what issues have already been raised under the new legal framework. Also, it offers an insight into the rationales underpinning the right to be forgotten from a UK perspective and explores whether further protection would be desirable.
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Notes
- 1.
An earlier version of this chapter has partly been included in the conference report of the ‘Congress of the International Society of Comparative Law’ held in Fukuoka in 2018. The authors would like to thank Professor Franz Werro, and Ms Claudia Hasbun for comments on an earlier draft. All errors remain the authors’ responsibility.
- 2.
This is the preferred name in the UK.
- 3.
For further detail see Mc Cullagh (2018).
- 4.
See NT1 and NT2 v Google and The Information Commissioner (2018) EWHC 799 (QB).
- 5.
For further detail see Sect. 3.3 below.
- 6.
See Case C-131/12 Google Spain SL & another v Agencia Espanola de Proteccion de Datos (AEPD) and another (2014) ECLI:EU:C:2014:317. For further detail see Sect. 3 below.
- 7.
Privacy laws: general tort of common law (libel, breach of confidence) but also harassment laws (Protection for Harassment Act 1997) and the misuse of private information tort action. For further detail see: Ghezzi et al. (2014), p. 35.
- 8.
See Directive 95/46/EC (1995).
- 9.
See for example Ghezzi et al. (2014), p. 17.
- 10.
See Sect 2.2 below.
- 11.
See for example Wainwright v Home Office (2004) 2 AC 406. In Wainwright v Home Office, the House of Lords was required to declare whether an action for the invasion of privacy was available under UK law for the first time. This case dealt with the strip-search of a mother and son during a prison visit in 1997 in breach of Prison rules. There is no overall remedy for the invasion of one’s privacy. To the contrary, the UK follows a piecemeal approach to the protection of privacy. See also Aplin (2007).
- 12.
In 1974, the Third Royal Commission on the Press was established to ‘...inquire into the factors affecting the maintenance of the independence, diversity and editorial standards of newspapers and periodicals and the public freedom of choice of newspapers and periodicals, nationally, regionally and locally.’; In 1989, Sir David Calcutt’s ‘Inquiry into Privacy and Related Matters’ was established. For further detail see Select Committee on Communications (2015), p. 53; Wainwright v. Home Office (2004) 2 AC 406, para 422; The Law Society and others v Kordowski (2011) EWHC 3182 (QB).
- 13.
There was no overall remedy for the invasion of one’s privacy. See also Semayne’s Case (1604) 5 Coke Reports 91a.
- 14.
See Tolley v Fry (1931) AC 333; Kaye v Robertson (1991) FSR 62. Tolley v. Fry deals with the publication of adverts for chocolate bars of a golfer without his consent whilst Kaye v Robertson deals with the trespassing of a celebrity’s hospital room by a journalist and photographer. Whilst having to rely on other areas of the law such as the law of trespass and tort of malicious falsehood, the judges criticised the lack of tort of privacy sending a direct message to the Parliament at the time.
- 15.
See Lord Nicholls in Campbell v MGN Ltd (2004) 2 AC 457, in relation to an article published by the ‘Mirror’ on Naomi Campbell’s drug addiction. The article included photographs of Naomi Campbell as she was leaving a Narcotics Anonymous meeting, together with additional information on her treatment. Here, the Court held that the confidential information and claimant’s right to article 8 of the ECHR prevailed over article 10. Campbell v MGN Ltd (2004) 2 AC 457, para 14 details: ‘The essence of the tort is better encapsulated now as misuse of private information’; reliance on the human rights framework also allowed courts to expand damages of distress in situations absent of pecuniary loss. In Vidal-Hall v Google Inc (2014) EWHC 13 individuals sued Google for the distress and anxiety caused due to the tracking and collation of browser activity the used for advertising purposes (see para 98-99). This decision was upheld on appeal in Vidal-Hall v Google Inc (2015) EWCA Civ 311.
- 16.
See Applause Store Productions v Raphael (2008) EWHC 1781 (QB). This case dealt with a Facebook group and profile containing defamatory materials in relation to the financial status of a business and the misuse of private information regarding the sexuality of the owner of said business; McKennitt v Ash [2006] EMLR 178, para 162. Here, the claimants were a Canadian folk musician and her recording companies against a former friend and personal assistant of the musician. This latter published a book revealing some of the musician’s personal and private life. The Court noted that each excerpt from the book had to be examined in turn to appreciate whether the threshold test of reasonable expectation of privacy was met. Eventually, the Court held that the musician was entitled to damages for hurt feelings and distress (see para 162); Campbell v MGN Ltd (2004) 2 AC 457; Campbell v MGN Ltd [(2002) EWHC 499 (QB); Vidal-Hall v Google Inc (2014) EWHC 13.
- 17.
See Applause Store Productions v Raphael EWHC 1781 (QB).
- 18.
For further detail see paras 38 and 69 of the judgment.
- 19.
For further detail see paras 69 and 82 of the judgment.
- 20.
Several forms of damages are available such as compensatory damages and exemplary damages, see John v MGN Ltd (1996) 2 All ER 35.
- 21.
It is worth noting that certain parts of the Defamation Act 2013 only extend to England & Wales and therefore do not apply to Scotland and Northern Ireland. For an overview, see UK Government (2013).
- 22.
See the Introduction.
- 23.
See Sect. 2.3 below.
- 24.
Considering the specific circumstances.
- 25.
See Sect. 2.3 below.
- 26.
See in particular UK DPA 2018, schedules 2 and 6.
- 27.
See Sect. 2.3 for further detail.
- 28.
At the time of writing.
- 29.
See Sect. 2.1 above.
- 30.
See for example the case of Reed Elsevier v Bewry (2014) EWCA Civ 1411; Steedman v BBC (2001) EWCA Civ 1534, [2001] All ER (D) 316 (Oct). The facts concerned the claimant’s application to disapply the limitation period in his proceedings for libel under section 32A of the Limitation Act 1980. The claimant was a local authority approved foster carer and the first defendant is the owner of the LexisNexis website. The proceedings where brought in relation to the words used in a case note about a judicial review published on the LexisNexis website. This case note was prepared prior to the judgement and was made available to the website’s subscribers. Whilst the High Court of England granted the claimant’s application to disapply the limitation period, the Court of Appeal eventually overturned this decision in 2014. In sum, it is very hard to extend a statutory limitation.
- 31.
See for example Bonnard v Perryman CA (1891) 2 Ch 269 reaffirmed in Greene v Associated (2004) EWCA Civ 1462. In the latter, Mrs Greene failed in her attempt to obtain and injunction preventing a publisher to disseminate a story based on emails she had sent to a conman. Applying the Bonnard libel rule whereby a libel injunction will be granted only if the claimant shows that chances of success at trial are high.
- 32.
See in particular Protection for Harassment Act 1997, s 3(3)a(a).
- 33.
See in particular Protection for Harassment Act 1997, s 1(3)(c).
- 34.
See Sect. 2.2 above.
- 35.
See for example The Law Society and Ors v Kordowski (2011) EWHC 3185 (QB), para 134.
- 36.
As you know, this exception was already established under Directive 95/46/EC and had been interpreted in Case C-101/10 Bodil Lindqvist v Sweden (2011) ECLI:EU:C:2011:462, para 47, where the CJEU held that this exception relates ‘only to activities which are carried out in the course of private or family life of individuals, which is clearly not the case with the processing of personal data consisting in publication on the internet so that those data are made accessible to an indefinite number of people.’ See also Ghezzi et al. (2014), p. 71.
- 37.
This case deals with a claim brought against the NG Global Witness for publication of corruption allegation against a mining conglomerate (BSGR) in Guinea. Steinmetz is one of the four individuals targeted by the report and founder of BSGR. He and three other individuals introduced a claim under section 7 DPA to obtain their personal data held by NG Global witness. Failing to answer these requests, Steinmetz and al. issued new proceedings seeking disclosure, deletion of personal data and damages. In turn, NG Global Witness argued the application of the exemption for journalistic purposes enshrined in section 32 of the DPA 1998. The ICO decided that campaigning non-governmental organisation (NGO) can rely on the ‘journalism’ exemption even if it is not a professional journalistic organisation. In essence, the scope of this exemption extends to anyone engaged in public interest reporting.
- 38.
See also Information Commissioner’s Office (2014).
- 39.
See for example The Law Society and others v Kordowski (2011) EWHC 3182 (QB). Mr Justice Tugendhat granted an injunction ordering the closing down of a website vilifying solicitors and law firms. As the journalism exemption enshrined in section 32 DPA relates to communication of information in the public interest and that today, any individual can engage in journalism, this exemption is not limited to traditional journalists.
- 40.
See in particular The Law Society and Ors v Kordowski (2011) EWHC 3185 (QB), para 134.
- 41.
See Case C-507/17 Google v CNIL OJ 2017/C-347/30.
- 42.
For further detail see Finck (2018a).
- 43.
It should be noted that The Advocate General’s Opinion is not binding on the Court of Justice.
- 44.
See Sect. 3 above.
- 45.
However, he did not specify which situations might trigger a need for a ‘worldwide’ right to be forgotten.
- 46.
- 47.
See Sect. 2 in relation to destruction of data
- 48.
Insolvency laws, defamation laws, the retention and communication of information in relation to offenders by the police, and the Rehabilitation of Offenders Act 1974.
- 49.
See for example R (Wood) v Commissioner of Police for the Metropolis (2010) 1 WLR 123; S and Marper v United Kingdom (2008) ECHR 1581; R (Ellis) v The Chief Constable of Essex Police (2003) EWHC 1321 (Admin).
- 50.
For an application by courts, see for example: R v Secretary of State for the Home Department (2014) UKSC 35; MM v UK (2012) ECHR 1906.
- 51.
O’Callaghan and de Mars (2016) specifically refer to X (a Woman Formerly known as Mary Bell) and Y v News group Newspapers Ltd, MGN Ltd (2003) EWHC 1101; Venables v News Group Newspapers Ltd and Others (2001) EWHC 32 (QB); Thompson v News Group Newspapers Ltd and Others (2001) Fam 430.
- 52.
For a list of reactions in the aftermath of the Google Spain case, see Powles and Larsen (2015).
- 53.
See European Union Select Committee (2014, question 21).
- 54.
See European Union Select Committee (2014, question 34).
- 55.
See for example Vidal-Hall v Google Inc (2015) EWCA Civ 311.
- 56.
See Sect. 2.3.
- 57.
See Mosley v Google Inc (2015) EWHC 59 (QB).
- 58.
For further detail see Hurst (2015), p. 193.
- 59.
See Vidal-Hall v Google Inc (2015) EWCA Civ 311.
- 60.
This relates to the idea that there should be limits as to how much we should allow rewriting history.
- 61.
The Leveson inquiry is a judicial public inquiry examining the culture, practices and ethics of the British press following phone hacking scandal by the News International in 2007, chaired by Lord Justice Leveson. Most of the hearings took place in 2011–2012.
- 62.
See also de Baets (2016), p. 59.
- 63.
See The Law Society and Ors v Kordowski (2011) EWHC 3185 (QB).
- 64.
See NT1 and NT2 v Google LLC (2018) EWHC 799 (QB).
- 65.
For further detail see Sect. 3.1 above.
- 66.
For further detail see Sect. 2.3 below.
- 67.
For the full facts of the case, see NT1 and NT2 v Google LLC (2018) EWHC 799 (QB) paras 5–12.
- 68.
The ‘Article 29 Working Party’ was an advisory body made up of a representative from the data protection authority of each EU Member State, the European Data Protection Supervisor and the European Commission. On 25 May 2018, it has been replaced by the European Data Protection Board (EDPB). For further information see Article 29 Data Protection Working Party (2014).
- 69.
Which would speak in favour of delisting.
- 70.
For further detail see FitzPatrick et al. (2018), p. 937.
- 71.
See the letter sent by 80 academics and shared with The Guardian in Kiss (2015). The letter is available at https://medium.com/@ellgood/open-letter-to-google-from-80-internet-scholars-release-rtbf-compliance-data-cbfc6d59f1bd.
- 72.
- 73.
As an example for the recent international media coverage of CNIL’s ‘record fine’ against Google, see Hern (2019).
- 74.
See for example Rosen (2012).
- 75.
See Directive 2000/31/EC (2000), pp. 1–16.
- 76.
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Jacques, S., Hempel, F. (2020). The Right to Be Forgotten in the UK: A Fragile Balance?. In: Werro, F. (eds) The Right To Be Forgotten. Ius Comparatum - Global Studies in Comparative Law, vol 40. Springer, Cham. https://doi.org/10.1007/978-3-030-33512-0_10
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