Developments on the ‘Right to be Forgotten' – Updates from Japan and Ireland

The Japanese Supreme Court has ruled against a man’s 'right to be forgotten'. The Japanese Supreme Court ruled against the applicant by stating that the public’s right to the information outweighed his rights, when considering the serious nature of the crime. The Court found that cases regarding the right to be forgotten should be judged on a case by case basis and did therefore recognise a qualified right to be forgotten.

The ‘right to be forgotten’ which has its genesis in European law generally entails an individual’s right to ask that a search engine remove results which link specific information from that result to the individual. As a matter of European law individuals have the right – under certain conditions – to ask search engines to remove links with personal information about them. This applies where information is inaccurate, inadequate, irrelevant or excessive for the purposes of the data processing. However under European law the right to be forgotten is not an absolute right and will always need to be balanced against other fundamental rights, such as freedom of expression and of the media.

By way of background to this case, the man  requested that evidence of him having been fined 500,000 yen (€4,100) for child prostitution be removed from Google’s search results so that he could continue his life “unhindered” by records of his criminal past. Google refused his request.

The Supreme Court set out a number of criteria considered by it in reaching its decision. The Court stated it was necessary to look at the nature and details of the facts, the extent to which the facts belonging to the person’s privacy will be transmitted by the provision of information, the degree to which the person suffers from concrete damages, the person’s social status and influence, the purposes and meanings of the said articles, social changes afterwards and the need for including relevant facts in the articles. However, the Court noted that these criteria much be examined against the need to balance the legal interest for non-disclosure with the rationales for information provision via search engines.

The decision has been welcomed by Google who see the decision as the Court prioritising the public’s right to information. This is significant for the company as they prepare to take a number of cases regarding the right to be forgotten.  

Of note the 'first right to be forgotten' case was heard before the Irish Circuit Court earlier this year. In that case Mark Savage (a former election candidate) appealed to the Data Protection Commissioner to have information posted about him on Reddit removed by Google. The Data Protection Commissioner upheld Google’s refusal to do so. The decision was overturned by the Circuit Court which found that the fundamental rights and legitimate interests of the appellant had been prejudiced. The Data Protection Commissioner and Google have lodged an appeal to the High Court which is listed for hearing in May 2017.

Further commentary on the decision of the Japanese Supreme Court available here.

Further commentary on the recent decision of the Irish Circuit Court available here.  

 

 

 

 

 

 

 

 

 

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