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Google wins appeal in first Dutch 'Right to be Forgotten' case

Google wins appeal in first Dutch 'Right to be Forgotten' case

Google wins appeal in first Dutch 'Right to be Forgotten' case

30.04.2015

This case briefly stated that Google is bound to remove certain search results should a person request Google to do so. A person can file such a request when he is of the opinion that these results can no longer be considered adequate or relevant, or when the processing of such search results is excessive and subsequently infringes the privacy of the respective person.

This European case has had great consequences for Google; the search engine has since received almost 240,000 requests and has evaluated more than 865,000 URLs. If Google refuses to remove certain search results, one can start legal proceedings on a national level.

In the Netherlands, one of the first cases dealt with by the national courts regarding the “Right to be Forgotten” was the case of a Dutch escort boss, X. X was sentenced to six years in prison in 2012 following a failed attempt to procure the murder of a competing escort boss. He gave very detailed instructions to an assassin, who, unbeknownst to X, was secretly filming the entire conversation. The hit-man proceeded to give the footage to Peter R. de Vries, a crime journalist, who aired the tape during an episode of his very popular true-crime TV show. Due to the mass media attention, an author also decided to write a criminal novel about the case, proclaiming it “faction”, a combination of fact and fiction. X is currently awaiting the appeal of his criminal procedure and claims that he is unable to pick up his day-to-day life, due to the fact that if you Google him, search results about the criminal case, the TV show and the book pop-up. He has filed a request for Google to remove certain search results and that Google’s auto-complete feature abstains from automatically connecting him to the TV show and the novel. X believes that Google actively manipulates the search results with no other aim than to harm him. Google should generally refrain from any infringement on X’s privacy. In first instance, the District Court rejected X’s requests. The Court is of the opinion that X has committed a serious crime which has led to a huge amount of publicity. The Court states that the Costeja-case does not aim to protect a person from all negative information published on the internet, but that a person should be protected from being haunted by irrelevant or unnecessary defamatory posts. The Court also believes that the search results relating to X’s criminal offences cannot be considered irrelevant and that the connection via autocomplete with Peter R. de Vries is logical. The right of freedom of information outweighs the right of privacy of X.

The ruling of the District Court is confirmed in appeal. The Court of Appeal states that although X is still awaiting the appeal in his criminal procedure, he has submitted no information which detracts from the existence of this conviction. The online publications are therefore the result of his own conduct. It is in the public interest that information about serious crimes, and consequently about the prosecution and conviction of X, can be accessed. X has not been able to prove that Google manipulates the search results. Furthermore, X has not contested the fact that the search results generated via the auto-complete feature are based on the number of times users have entered certain search results. There is no evidence that Google has deliberately caused damage to X and X has not argued that the auto-complete feature generates additional search results that would harm him. The general ground of appeal that Google should refrain from infringing X’s privacy is too broad and has been rejected. The Court’s lesson for X is clear: if you play with fire, you are going to get burned.

Source: Court of Appeal Amsterdam, 31 March 2015, ECLI:NL:AMS:2015:1223

Click here for a PDF version of the 51st edition of our ICT Law Newsletter.

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