Online Content Removal: Insights from a Lawyer
Online Content REMOVAL LAWYER
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Online Content Removal Lawyer
PAIL® Solicitors offer expertise and over a decade of experience in online content removal, harassment and defamation. Contact us using the above form or at peter@pailsolicitors.co.uk or on 0207 305-7491 charge rates may apply and may vary).
The Right To Online Content Removal
This is not a step-by-step guide to Online Content Removal. It is not tips for Online Content Removal. It is a summary of the Right To Online Content Removal of Data under GDPR which is a method for Online Content Removal.
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In the case of Google Spain v AEPD (Costeja)the ruling Court of Justice of the European Union stated that an Internet search engine is responsible for the processing of personal data. Further, an individual could request the removal of hypertext links from a search engine’s index. In that specific case, Mr Costeja was entitled to have his personal data removed from Google search results based on Articles 12(b) and 14(1) of Directive 95/46 EC on the protection of individuals concerning the processing of personal data and on the free movement of such data (the first EC Directive)
Articles 12(b) and 14(1) can be found in Section 5 under The Data Subjects Right Of Access To Data and Section 7 under The Data Subject’s Right To Object in the First EC Directive as follows:
Article 12 - Right of access
Member States shall guarantee every data subject the right to obtain from the controller:
(b) as appropriate the rectification, erasure or blocking of data the processing of which does not comply with the provisions of this Directive, in particular, because of the incomplete or inaccurate nature of the data;
Article 14 - The data subject's right to object
Member States shall grant the data subject the right:
(a) …..to object at any time on compelling legitimate grounds relating to his particular situation to the processing of data relating to him, save where otherwise provided by national legislation. Where there is a justified objection, the processing instigated by the controller may no longer involve those data;
In summary, the first EC Directive provided that individuals had the right to online content removal, rectification or blocking of content which did not meet the standards of the directive and that they had the right to object to the processing of the content.
There is a specific right to the removal of hypertext links from search results from the search of the name of an individual. However, according to the European Data Protection Board removing the links does not mean the content will be removed from the source of the link.
The first Directive has now been superseded by the General Data Protection Regulation, adopted in April 2016, and became enforceable on 25 May 2018 (the second Directive)
Article 17 of the second Directive also gives a so-called right to “erasure” which should mean an unqualified right to removal of all traces of the content. However, the right to erasure is not as absolute as it sounds. The right to erasure is also described as the Right To Be Forgotten. Article 17 of GDPR is set out below:
Article 17 GDPR - Right to erasure (‘right to be forgotten)
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The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies:
the personal data are no longer necessary concerning the purposes for which they were collected or otherwise processed;
the data subject withdraws consent on which the processing is based…, and where there is no other legal ground for the processing;
the data subject objects to the processing…and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing …..;
the personal data have been unlawfully processed;
the personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject;
the personal data have been collected concerning the offer of information society services …..
Where the controller has made the personal data public and is obliged under paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data.
Paragraphs 1 and 2 shall not apply to the extent that processing is necessary:
for exercising the right of freedom of expression and information;
for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
for reasons of public interest in the area of public health…
for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes …; or
for the establishment, exercise or defence of legal claims.
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Online Content Removal And DPA 1984/1998
The word erasure is used in Section 24 of the Data Protection Act 1984 and again in the latest Data Protection Act 1998 but remains undefined in either Act. There is therefore some ambiguity as to the exact intention of the word erasure and what it refers to, its denotation or scope is unclear.
Online Content Removal Grounds
There are various grounds under which you can request online content removal using data protection law.
The main one is an objection to processing
Online content must be removed to comply with a legal obligation (a court order or proceedings)
Where there is a special category of data
Where it’s personal data collected from children
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It will not be surprising to learn that an online content removal request can and is often refused because continuing processing is necessary based on the exemptions in data protection laws.
Note that data protection laws are only one of the ways online content can be removed. To master the art of Online Content Removal you will need other tools as well as using laws relating to the protection of personal data, such as defamation, harassment or intellectual property laws.
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