In principle no balance of interests upon a request for ‘right to be forgotten’

Forever findable on Google? On Friday 24th of February 2017 the Dutch Supreme Court has ruled that a person’s privacy interest outweighs the economic interest of the operator of a search engine and the interest of internet users in having access to information: in principle search engines have to heed the request for the ‘right to be forgotten’. Only in special circumstances this could be different.

In the present case the claimant was featured in an episode of “Crime reporter” hosted by the reporter Peter R. de Vries. The episode shows secretly filmed recordings where claimant and a hitman are discussing the best way to liquidate claimant’s competitor in the escort industry. Claimant is sentenced to six years prison in the first instance. He appeals the decision.  The case obtained a lot of media attention. In the media claimant is mentioned in the usual way: by his first name, insertion and only the first letter of his last name. He discovers that googling his full name leads to search results that refer to news articles regarding among other things this matter, which he wants to prevent. Claimant calls upon his ‘right to be forgotten’, which is known from the ruling by the European Court of Justice in Google/Costeja.

Google rejects claimant’s request. Shortly thereafter, he starts interim relief proceedings to make sure the links still can be removed from Google. The judge rejects his claims. Claimant has recently committed a serious crime for which he was convicted. His privacy interest does not weigh up against the freedom of information. The Court of Appeal upholds this decision.

In cassation the Dutch Supreme Court follows the considerations of the European Court of Justice in Google/Costeja and the case turns out differently. The Supreme Court rules (in accordance with Google/Costeja) that when assessing a request for the ‘right to be forgotten’, the right to privacy shall prevail. Only in special occasions the internet user’s interest to have access to information and the economic interest of the operator of a search engine can outweigh a person’s privacy interest.

The Supreme Court states that the Court of Appeal should have researched whether the public has a legitimate interest to have access to the information about claimant’s conviction when googling his full name. And whether claimant has a role in public life, and if so what role. The mere fact that claimant has been convicted in the first instance for a serious crime and that the conviction has received publicity is not sufficient. The Supreme Court finally points out that claimant’s interest, for example that his conviction is not irrevocable yet, has not been taken into account sufficiently.

Moïra Truijens and Tamilla Abdul-Aliyeva