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Google wins ‘Right to be Forgotten’ case in Japanese Supreme Court

14/02/2017

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Ireland

Public’s right to know –v- Individual’s right to privacy The Japanese Supreme Court ruled in favour of Google in its first ‘right to be forgotten’ case by rejecting a man’s attempt to have references to his arrest and conviction for child prostitution removed from Google search results. Although the court did not mention the EU-style ‘right to be forgotten’, it set strict conditions for allowing the deletion of certain references and elevated the ‘speech status’ of search...

Public’s right to know –v- Individual’s right to privacy

The Japanese Supreme Court ruled in favour of Google in its first ‘right to be forgotten’ case by rejecting a man’s attempt to have references to his arrest and conviction for child prostitution removed from Google search results. Although the court did not mention the EU-style ‘right to be forgotten’, it set strict conditions for allowing the deletion of certain references and elevated the ‘speech status’ of search results and declined to establish such a blanket right in the country.

Background

The plaintiff requested that reports posted online more than four years ago detailing his arrest and conviction for breaking child prostitution and pornography laws, for which he was fined 500,000 yen (approx. €4,100), be removed by Google. The District Court ruling held that he had a right to have details of his crime expunged online and to rebuild his life “unhindered” by records of his criminal past. However, the High Court overturned the decision in July 2016 holding that it was not in the public interest to expunge the man’s criminal record and that there was no such legally protected right.

Supreme Court decision

The five-justice Supreme Court unanimously dismissed the plaintiff’s demand in its recently delivered decision. The court stated that the crime was serious and continued to be a matter of public interest and that the public’s right to know, outweighed the man’s right to privacy, given the serious nature of his crime. The court noted that any requests for content removal from search results needed to be considered on a case-by-case basis and that the public interest in the information had to be weighed against the potential harm to the individual. The court noted that the degree of damage caused to privacy, how broadly specific searches can be carried out and the social standing of individuals in question were conditions that needed to be considered when deleting search engine results. The court also stated that search results are a form of speech even if they are generated by machine, and restricting the results could be seen as a restriction on speech. The court effectively established a “balancing test” between an individual’s right to privacy and the public’s right to information. Taj Meadows, head of policy communications at Google Asia Pacific, was pleased with the decision stating, “any decision to delete information from search results should prioritize the public’s right to information”. While Japanese decisions do not have any precedence in this jurisdiction, this is an important decision for Google, privacy rights and the public’s right to information. Google is currently defending a number of similar right-to-be-forgotten disputes. In particular, Google is appealing an order by the French data protection authority to remove certain web search results globally. In this jurisdiction, the Data Protection Commissioner and Google are appealing a ‘right to be forgotten’ decision of the  Circuit Court, which appeal is due to commence in May 2017 - Mark Savage v the Data Protection Commissioner and Google Ireland Inc (please see previous blog post for further details).

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