If your right to be forgotten application has been declined or refused for whatever reason, you should not be disheartened. This happens a lot and often for no good reason. If your right to be forgotten request was addressed to a search engine, there are at least, six ways for you to appeal the decision.
Firstly, your right to be forgotten request might have been rejected for a technical reason. An example might be a message from Google with words to the effect that “It appears that the full content is locked or otherwise inaccessible to us” or “Upon recent review of the following URLs, we were unable to locate the content in question”.
If you believe that the content moderator at Google had missed out on a link or mistyped it, or was just wrong with the URL that they looked at, you may appeal this decision by responding to the message you had received from Google and provide the correct URLs for the moderator to look at. Make sure you firstly double check that the links work. You may provide any additional to the search engine provider and request that your right to be forgotten application is reassessed in view of the fresh information you have just submitted.
Secondly, you may appeal a refusal to a right to be forgotten request by serving on the search engine a General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA 2018) Notice. The search engine might be processing outdated, irrelevant, excessive, inaccurate or sensitive personal data, which you did not consent to and this might be in breach of your right to privacy. If you serve a GDPR Notice on the search engine, someone will look again at your right to be forgotten request and it is possible that you will receive a different outcome.
Thirdly, if your GDPR Notice to the search engine is also refused, you may take your case to court. If you decide to take your right to be forgotten matter to court, it is likely that before the case gets to court and before your claim is even formally served on the search engine, your initial right to be forgotten request will be looked at by a lawyer acting for the search engine. The hope would be that this lawyer will take a more accurate and balanced view towards your request. The court, of course will be able to overturn any previous decision to refuse your right to be forgotten request by the search engine.
Fourth, if the search engine has refused your right to be forgotten request, you may, in addition to, or instead of serving the search engine with a GDPR Notice, appeal your case to the Information Commissioner’s Office (ICO).
The ICO is the independent body responsible for Data Protection in the UK and it can order Google to de-list certain searches from its search results. The ICO can direct the search engine to accept your right to be forgotten request but your need to be aware that this might be a long process which may involve a period of correspondence and replies, appeal and cross appeals between you, the search engine and the ICO.
Fifth, if the final decision by the ICO happened to side with the search engine, you will still have an opportunity to appeal the ICO decision to refuse your right to be forgotten request to a senior ICO caseworker. This is process of appeal and is also sometimes referred to as a “review” or a “complaint” and you might have a limited amount of time to exercise your right to have your right to be forgotten request to the ICO reviewed by the ICO internally.
Lastly, if you believe that the ICO decision, after it was internally reviewed by an ICO senior caseworker, is wrong, you will again have a limited period of time to make judicial review against the ICO. A judicial review is an application to the court against a decision of a public body, which you believe is unreasonable for various prescribed reasons. It is important to get each step of the process right and as consistent as possible with the previous steps.
As you can see, there are at least six ways to appeal a decision by a search engine to refuse your right to be forgotten application which means you should not give up simply because your request was rejected once, twice or even three times. Finally, there might be strict timetables for you to adhere to in relation to some of the steps we have described above, so it might be a good idea to for you to obtain legal advice before you commence the right to be forgotten process. This will enable you to prepare a more accurate right to be forgotten request and to balance your financial resources, if those are limited so that you are adequately prepared.
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