Right to be forgotten – Khashaba revisited

In July of this year, I blogged about a judicial review case involving a challenge to the ICO’s decision that Google had not breached the DPA when it refused a ‘right to be forgotten’ application made by a Mr Khashaba. My post confirmed that the court had refused permission for Mr Khashaba to proceed with his claim on the papers. Mr Khashaba has since gone on to renew his application for permission. That application was also refused. The judge, HHJ Simon Barker QC (sitting as a Deputy), concluded that permission should be refused on the basis that civil proceedings against Google constituted an adequate alternative remedy, even if those proceedings required service out of the jurisdiction. The judge went on to observe that civil proceedings also constituted a more appropriate vehicle for resolving Mr Khashaba’s claim. This was particularly because they would allow the evidence in the case to be more effectively tested, with the result that the judge would be in a position to make a more effective and informed assessment of the reliability of the claimed consequences of continued listing of the relevant webpages (cf. judicial review proceedings where typically there is no cross-examination of witnesses). Mr Khashaba was ordered to pay the ICO’s costs. Christopher Knight represented the ICO.

What is notable about this judgment is that it suggests that the courts are alive to the fact that assertions that particular data ought to be forgotten should not be taken at face value but should instead be rigorously tested. Obviously one is left with the abiding questions of whether Google, as opposed to the authors of the relevant source websites: (a) is itself best placed to undertake that testing exercise and (b) will be sufficiently incentivised in any individual case to mount a defence to the claim. It will in any event be interesting to see whether Mr Khashba does now seek to pursue his case against Google.

Anya Proops