Right to be forgotten claim rejected by the administrative court

So here’s the question: you’re an individual who wants to have certain links containing information about you deindexed by Google; Google has refused to accede to your request and, upon complaint to the ICO, the Commissioner has decided that your complaint is unfounded and so he refuses to take enforcement action against Google under s. 40 DPA 1998; can you nonetheless secure the result you seek in terms of getting your data forgotten by mounting a judicial review challenge to the ICO’s decision? Well if the recent decision by the Administrative Court in the case of R(Khashaba) v Information Commissioner (CO/2399/2015) is anything to go by, it seems that you’ll be facing a rather mountainous uphill struggle.

In Khashaba, Mr Khashaba had complained to the Commissioner about Google’s refusal to de-index certain articles which apparently contained information revealing that Mr Khashaba had failed in his legal attempts to get his gun licences reinstated and had also failed to obtain placement on the Register of Medical Specialists in Ireland. The Commissioner concluded that Google had acted lawfully under the DPA 1998 in refusing to de-index the articles in question. Mr Khashaba was evidently unhappy with this result. Accordingly, he brought a judicial review claim against the Commissioner in which he contended in essence that the Commissioner had erred: (a) when he concluded, in exercise of his assessment powers under s. 42, that Google had acted lawfully in refusing to de-index the articles and (b) by failing to take enforcement action against Google under s. 40. By way of an order dated 17 July 2015, Hickinbottom J dismissed Mr Khashaba’s application for permission to judicially review the Commissioner’s decision. His reasoning was based on the Commissioner’s summary grounds, upon which the court felt itself unable to improve:

– first, permission was refused on the ground that Mr Khashaba had an alternative remedy because it was open to him to bring proceedings against Google directly in connection with its refusal of his application to be forgotten;

– second, the Commissioner had a wide discretion under s. 42 as to the manner in which he conducts his assessment and as to his conclusions on breach. He also had a wide discretion when it came to the issue of enforcement under s. 40. There was no basis for concluding that the way in which the Commissioner had exercised his powers in response to Mr Khashaba’s complaint was unreasonable or otherwise disproportionate.

All of which tends to suggest that: (a) the courts are likely to be very slow in impugning a decision of the Commissioner that particular information should not be forgotten and (b) that, if you’re an applicant who wants your data to be forgotten, you may yet find that the regulatory route offers little by way of comfort in terms of securing the necessary amnesiac effect.

11KBW’s Christopher Knight represented the Commissioner.

Anya Proops