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Right to be forgotten: Mosley v Google

Information law solicitor Natalie Ruane highlights a case surrounding the removal of search engine results from internet search engines.

Following on from our blog regarding the Google Spain case and ‘the right to be forgotten’, this case considers the issue surrounding the removal of search engine results from internet search engines. In some cases, in particular those with a high ‘online’ presence such as Max Moseley, by the time one search result has been removed by the ISE (internet search engine) another two may have been created making it almost impossible to fully remove a link; and instead achieving the result that it is just harder for the public to find the online material.

Whilst this case was ultimately settled, it posed the question whether the right to be forgotten was in fact fit for purpose. Regardless of whether the search results are removed, the actual content is never removed from the infringing site leaving ‘footprints’ all over the internet. Whilst the chances of finding the infringing work is significantly reduced (as the only sure way to find it again would be to know the website address) there is still a chance that the infringing article could make a resurgence day/weeks/months down the line. 

Google intended to run the defence that as an ISS (intermediary society service) it only cached (stored) the data (s10 DPA) and that as an ISS they were excluded from the general obligation to monitor the cached content (Article 15 E Commerce Directive). 

Google’s arguments were considered; although as it was settled there is still some question over the strength of their argument. What is clear, however, from the Judgment of Mitting J and Article 13(2), is that the ISS’s liability is not limited where an individual’s data protection rights are infringed.

Whilst the above may seem incredibly technical or complex, to break it down very simply, the judgment has consequential effect in particular on those who run chat rooms and local forums in that they could be liable should a member breach another’s data protection rights and a claim for damages is brought.  The question however remains as to what extent or how much ISS’s and potentially ISE’s should monitor these websites.

The above only highlights the small tip of a very big iceberg. The right to be forgotten, whilst in theory seems relatively straight forward,  in practice is incredibly difficult to apply due to the nature of the internet and the footprints we all leave on a day to day basis. This area will undoubtedly see a whole string of new caselaw on risk, liability, and duties on consumers, companies, service providers and any intermediaries. As I am sure you can guess the right to be forgotten is only in its infancy and there is a long path to take, before it becomes fully developed.

About the author

Natalie Ruane profile photo

Natalie Ruane

Natalie is a Partner and leads the Employment Law & HR team and specialises in education.

Published: Monday 8th June 2015
Categorised: Information Law

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