On 14 July 2020 the Belgian Data Protection Authority (the “GBA” or former “Privacy Commission”) imposed a fine on Google Belgium for not respecting the “right to be forgotten”. Google had refused to remove old newspaper articles from its search results. The complainant had submitted a “removal request” to Google because he felt that these old articles violated his reputation. The GBA itself speaks of a “decision of principle”.

 

Request to Google under the “right to be forgotten”

The complainant found that, when he searched for his name on Google’s search engine, certain search results were displayed that were out of date and that tarnished his honour and reputation. These were newspaper articles relating to alleged links with a political party (the complainant was given a “political label” which he considered incorrect) and articles relating to an old harassment complaint against the complainant which had already been dismissed 10 years ago.

 

The complainant submitted a request to Google to remove the links from the search results, but Google refused to comply with this request. Google referred, among other things, to the role of the complainant in public life. The case thus ended up before the Dispute Resolution Chamber of the GBA.

 

Decision by the GBA

The GBA ruled, on the one hand, that Google was not obliged to remove the search results because of the “political label” of the complainant. The GBA took into account that the complainant held a public function and that the newspaper articles were allowed to remain because of the complainant’s possible political affiliations.

 

But the GBA also found that Google had indeed fallen seriously short with respect to the old harassment complaint by refusing the removal request. After all, the allegations against the complainant had been declared unfounded and the newspaper articles were also very much outdated. Even though these articles may have contributed to the public debate at the time, after 10 years this was no longer the case and the privacy rights of the complainant take precedence.

 

The GBA found that the display of these articles in search results for the complainant’s name could have serious implications for both the complainant’s private life and his career. Thus, Google should have respected the complainant’s petition under the “right to be forgotten” and should have removed the links to the search results so that they would no longer appear when searching for the complainant’s name. The GBA found that Google had been extremely negligent in its refusal, as Google knew or should have known that the facts were incorrect (or irrelevant), and out of date.

 

Balance between “right to be forgotten” and right to information

The President of the Dispute Resolution Chamber also emphasised that a correct balance must always be sought between the privacy rights of the complainant and the public’s right to information. Specifically, the GBA ruled that in the case of the articles about possible links with a political party, the right of access to information should take the upper hand, but that in the case of the articles about unproven harassment dating from 10 years ago, the “right to be forgotten” was more important.

 

Heavy fine for “right to be forgotten”?

The fine of 600.000 euros that the GBA imposed on Google is, by Belgian standards, very high. This is much higher than the fines the GBA has imposed on infringers in the past. The previous record was a fine of 50.000 euros to Proximus in connection with the DPO (Data Protection Officer) function at this company.

 

In Sweden, however, Google has already been fined 75 million Swedish Kronor (approximately 7 million euros) for a similar case involving the “right to be forgotten”.

 

The GBA notes that its fine was calculated based on the worldwide turnover of Google Belgium’s parent company, Alphabet, and is therefore not disproportionate.

 

The GBA imposed this fine on Google primarily because Google did not remove the search results related to the obsolete complaint from its search results, but also emphasizes that Google did not provide enough information to the complainant about the reasons why it refused the removal request and that Google’s application form was not transparent enough.

 

Google is required to amend its “right to be forgotten” request forms to make it clear which entity is responsible for data processing. The GBA did not accept that the complaint should be filed against Google LLC in California and thus held the Belgian subsidiary Google Belgium liable for following up on the “removal request”.

 

 

Do not hesitate to contact us for further questions concerning the “right to be forgotten”.

 

Author: Bart Van Besien