Jusletter IT

How often have we wished for a better memory; and how often have we heard the truism that apparently time heals all wounds. In this respect, the Internet is both a blessing and a curse: it is a great archiving tool, but search engines also provide results that might be out-dated or just unfavourable. The following selection of measures might help falling into online oblivion, if so desired:

First, it is reasonable to contact the author of the undesired information and request an anonymisation or removal. Any change on the content server will then propagate through the Internet search engines.¹

Second, one might undertake active online public relations. By issuing new information on the topic, the undesired information may fall back in search engine rankings over time. However, to be effective, the new posting must be qualified as important by the relevant search engines.²

Third, one might file a data protection information request.³ If the request reveals that the personal data processed is disproportionate, incorrect, or incomplete, one might request their correction or deletion.⁴

Fourth, one might file a complaint with the Swiss Press Council, if the undesired content is published in the editorial part of public, periodic or current media⁵.

Fifth, one might file a civil claim (i) for infringement of personality rights or (ii) for a counterstatement, if personality rights are directly affected by a representation of events in periodically appearing media.⁶ To be effective, such counterstatement should be issued promptly and linked to the main publication. However, a civil claim can also backfire as «Streisand effect’⁷ and should thus be well considered before filing.

Is it permissible to address the search engine provider directly requesting removal of the undesired content? In a pending landmark case involving Google, not according to the General Attorney at the European Court of Justice: «The rights to erasure and blocking of data, provided for in [the Directive] do not confer on the data subject a right to address himself to a search engine service provider in order to prevent indexing of the information relating to him personally, published legally on third parties» web pages, invoking his wish that such information […] be consigned to oblivion».⁸

To date, it is yet uncertain how this opinion will affect the Google case or legislature in the EU⁹ and in Switzerland¹⁰.

Daniel Ronzani

 

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This article was first published in January 2014 and therefore does not consider the current decision of the ECJ of 13 May 2014 (C-131/12). Contrary to the Advocate General’s opinion of 25 June 2013 stated in the newsletter article, by which the EU Data Protection Directive does not stipulate a right to be forgotten, the ECJ now ruled in favour of such a right: «As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter [of Fundamental Rights (2000/C 364/01)], request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name.»