Please see the blog of 25/10/2015 which updates this blog
Google was given 35 days (which elapsed around October 1st) to respond to the Commissioner's Enforcement Notice; I have found out from a very reliable source that Google has not appealed (i.e. passed over the opportunity to defend the policy at the Tribunal). As Google risks criminal prosecution if they have not complied with the ICO’s demand, I am assuming Google has complied.
The nine search results related to a relatively minor criminal conviction for which the data subject received a two years conditional discharge; the offence was committed nearly a decade ago. As the offence is spent under the Rehabilitation of Offenders Act, and the data subject is not a public figure, Google took down the links to the conviction.
However, Google then followed its common practice and informed the website owner that a post concerning the data subject had been delisted. This caused the website owner to repost the story, presumably in the context of freedom of expression, which included the full criminal record details again.
This new posting was then reproduced by other websites, and it is these nine links that were subject to the Enforcement Notice.
Google refused to delist this new posting on the grounds that the story about the taking down links and freedom of speech was in the public interest even though it contained the criminal record details it did delist.
The Enforcement Notice
In our DP courses, I always stress that there is no point for a controller to get an Enforcement Notice and NOT to appeal subsequently to the Tribunal. This is because, usually, the Commissioner gives a data controller the opportunity to meet his demands without serving an Enforcement Notice.
For example, suppose the Commissioner were say to a controller: “I have done an investigation and please delete these personal data”. The Commissioner only needs to consider enforcement if the controller then refuses to delete the personal data. Note that if the controller meets the demand and deletes the personal data, then there is nothing for the Commissioner to enforce!
So, in these circumstances, if a controller were to refuse to delete the personal data, there is a principle where the data controller thinks the Commissioner is wrong. So in its Enforcement Notice (in paragraph 16), Google clearly state that the retention of the links to the new posting was in the public interest. The ICO disagreed with this position, Google resisted, and hence the Commissioner had to serve an Enforcement Notice.
The scene was therefore set for an interesting Tribunal Hearing and perhaps the long march through the legal institutions to the Supreme Court. However, this has not happened; the dog has refused to bark.
In other words, Google has not taken the opportunity to defend its procedure of informing websites that certain personal data have been delisted. This will encourage others who oppose this policy to make similar complaints to the ICO.
Note added: a comment has been made that points out that that the delisting of links only arises when the search term includes the name of the data subject.
References
Google’s enforcement notice: https://ico.org.uk/media/action-weve-taken/enforcement-notices/1432380/google-inc-enforcement-notice-18082015.pdf
The above will be discussed at our all day UPDATE session (Oct 19th; London; £225); places still available. Next BCS Qualification in Edinburgh (starting Nov 2nd) and London (starting Nov 16th). All details on www.amberhawk.com.
I think the headline is a bit misleading. It is not about defending telling websites it is about then allowing a search result from any new story with similar information.
You also use the term 'remove link' which again is misleading as the link will appear depending on the search criteria used. The results from a search on the data subject's name will not include the links referred to, but a search on other terms on that web page may return those links. This again is important as if these sites use a common term in their text, the pages could be easily found.
What about other search engines? Have they been asked to remove links?
Posted by: Baz | 14/10/2015 at 08:06 PM