This post was written by Cynthia O’Donoghue.
The "right to be forgotten" is a hot topic of discussion in the context of imminent EU Data Protection Reform. Article 17 of the new EU General Data Protection Regulation will give data subjects the “right of erasure” to request that data controllers delete any personal data relating to them, and ensure there is no further dissemination of such data. Such requests will extend to third-party hosts where that data may have been sent, obliging deletion of any links, or copy or replication of that data. This is likely to be particularly onerous on Internet companies like Google, Facebook or YouTube, given the amount of personal data processed on these platforms.
Case-in-point was highlighted in a recent court case, McKeogh v John Doe 1 & Ors . In November 2011, a student evaded a taxi fare in Dublin. At the time the taxi driver took a video of the culprit and posted it on YouTube, asking help to identify the boy. This led to Mr McKeogh being mistakenly identified as the perpetrator. The creation of a Facebook page resulted in the video becoming viral and a campaign of abuse began. In the words of Mr Justice Michael Peart, this social media storm led Mr McKeogh to suffer a “miscellany of the most vile, crude obscene and obnoxious comments” wrongfully condemning him as the culprit.
In court, Mr McKeogh was proven innocent beyond all reasonable doubt on the grounds that he wasn’t even in the country at the time of the crime, having been studying in Japan. However, Mr McKeogh was refused an order prohibiting the press from publishing the defamatory material. Furthermore, YouTube, Google and Facebook failed to respond to requests to remove the video and related links. Therefore, despite clearing his name in court, the allegations and adverse comments remained online and in the media, tarnishing his reputation and future career prospects. In a judgment given in the High Court in Ireland on 16 May 2013, Mr Justice Michael Peart commented damages could not sufficiently compensate the defendant for the distress suffered, which would continue for so long as the material remained online. As a result, a mandatory injunction was granted ordering YouTube, Google and Facebook to take down the offending material within 14 days.
This judgment has the potential to open the floodgates and set a precedent to justify further requests by others objecting to videos posted about them on social media.