Google’s Scandi-lous New Approach: Swedish Case Law Update and the ‘Right to be Forgotten’

In a change to the procedure involved in the process of exercising an individual’s ‘Right to be Forgotten’, it emerged last week that Google has stopped notifying original publishers of the removal of their content from search results.

The decision from Google comes after the Swedish Administrative Supreme Court ruled that informing publishers about delisted content is a breach of privacy of the person making the request.

The Right to be Forgotten

In 2014, the landmark case of NT1, NT2 -v- Google LLC established the “Right to be Forgotten” in relation to the de-listing from Google’s search engine. The claimants had been convicted of fraud offences, served custodial sentences and the events took place sometime prior to the case against Google came before the Court.  The case was a landmark decision as it established a legal obligation on search engine operators to remove personal data (in the form of search results responsive to a person’s name) in certain circumstances (where that data was inaccurate, irrelevant or excessive) and provided guidance on the criteria for a delisting request.

From that landmark decision, the RTBF, or Right to Erasure as it now is, became enshrined in law in the UK GDPR.  The right gives data subjects greater control over their personal data and recognises that personal data may become out of date and processed in a way that stigmatises against them unfairly.  Broadly, Article 17 of UK GDPR  gives individuals the right to ask data controllers, including but not limited to search engines like Google, to delist certain results for queries related to a person’s name.

The right is not absolute and certain criteria must be met for it to be exercised. This includes whether there is a public interest in the information remaining in the search results.

When exercising this right, the individual can apply to Google (and any other applicable search engines) to have the specific content delisted. This will then be assessed on a case by case basis.

The Right to be Forgotten is only available to individuals and the right is not available to businesses.

Update

Before this ruling was made, when an individual requested the delisting of content about themselves, it is understood that Google would notify the publisher of the original. Now, following the decision of the Swedish Court made in December 2023, it is being reported that Google informs publishers that a URL has been removed, but does not provide any further details.

The reasoning the Swedish Court found behind the decision is that informing publishers about the removed links was a breach of the individual’s data protection rights.

It is not clear how this will impact the Right to be Forgotten for individuals in the UK seeking to invoke their Right to be Forgotten but it has been reported that Google is now applying the same process globally. It is therefore something for both publishers and individuals making requests to Google to be aware of.