Legal insight for journalists from one of the UK's leading legal trainers

As editors face more 'take-down' requests EU 'right to be forgotten' is at odds with US 'right to remember'

Journalists are already being affected by the fall-out from the European court’s decision on the ‘Right to be forgotten’ last week.

National newspapers, and local papers in Oxford, South London and Glasgow have received ‘take-down’ requests from readers (as has Press Gazette) - even though the ruling does not apply to media archives.

The EC ruled that search engines must remove links to irrelevant and outdated data, if asked.

The decision means people are more likely to ask newspapers and magazines to remove archived content, too.

Editors can say: No, as they already have journalistic exemption under s32 of the Data Protection Act.

David Smith, Deputy Commissioner and Director of Data Protection emphasised the point in his blog.

He said that someone wanting to erase their history must make separate requests to a search engine, and to the media.

He said: "The original publication and the search engine are considered separately. The public record of a newspaper may not be deleted, even if the link to it from a search website is removed."

Smith added: "Section 32 can be applied by media organisations, bloggers and other publishers of information, depending on the circumstances."

The ICO issued draft data protection guidelines to the media, well before the Google decision. Consultation on them closed last month. No final decision has been made on them yet.

They say: "You [editors etc] will find it more difficult to rely on the exemption if there is no evidence that data protection concerns were understood, raised or considered.

"It’s a good idea to keep some sort of audit trail in cases you think are controversial or particularly likely to prove contentious."

The guidelines suggest that the media:

  • have clear policies about what needs editorial approval
  • give all staff some basic data protection awareness training 
  • have an inbuilt public interest check at key stages of a story 
  • have an inbuilt data protection check at key stages of a story
  • keep an audit trail for decisions you think might be challenged.

The guidelines add: "The key stages where a check might be needed are likely to include the initial decision to pursue a story, any decision to use covert methods of investigation, and final decisions on what to publish."

The Google ruling puts the EU at odds with American websites and search engines. The USA’s constitutional right to free speech gives them the ‘right to remember’.

The ICO has published a helpful summary on the Google judgment.

Cleland Thom is a consultant and trainer in media law 
  

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