A right to be forgotten legal proceedings
Can you issue right to be forgotten legal proceedings
You can issue right to be forgotten legal proceedings and beginning the process is relatively easy. Too many individuals suffer for far too long with negative search results coming up with their name on Google searches. They might then have their right to be forgotten request to Google refused, which might mean the only way left to remove those offending articles is by commencing right to be forgotten for legal proceedings.
Why issue right to be forgotten legal proceedings
5 Steps you should take before issuing right to be forgotten legal proceedings
Will the search engine defend a right to be forgotten for legal proceedings
Advice on right to be forgotten legal proceedings
Why issue right to be forgotten legal proceedings
Legal proceedings are a serious matter. This is particularly true if the defendant you are planning to take to court is one of the most powerful companies in the world. In many cases, therefore, those who decide to issue right to be forgotten legal proceedings are individuals who feel that they have nothing left to lose, or those who feel they have everything to lose.
Issuing right to be forgotten legal proceedings against a search engine must be an action of last resort but if you are left with no other alternative and you feel that the refusal to accept your right to be forgotten request is unfair and unlawful, then you might have no choice but to issue legal proceedings.
5 Steps you should take before issuing right to be forgotten legal proceedings
There are of course many steps that you should take before issuing right to be forgotten legal proceedings. We suggest at least 5 steps:
Ensure your right to be forgotten request has been properly filed
You have to make sure that your right to be forgotten request has been properly filed before moving forward. Make sure your right to be forgotten request has been filed property and that it contains lawful grounds under GDPR and privacy laws for the removal of links from search results. It is not a legal requirement to file a right to be forgotten request before starting right to be forgotten legal proceedings, but it is a recommended first step which is fairly cheap and could certainly do the job.
Serve a well drafted GDPR Notice
After your right to be forgotten request had been refused, serve on the search engine provider a GDPR Notice. The GDPR Notice must contain your legal reasons in support of your right to be forgotten request and it is often a lengthy document to which you should add supporting evidence. The GDPR Notice will form the basis of your arguments at the right to be forgotten legal proceedings.
Draft a claim form as the first step in the right to be forgotten legal proceedings
If after serving the GDPR Notice, the search engine still refuses to delist the offending search results, draft your claim form and have it sent to the search engine providers’ registered offices. Address your claim to the legal team.
The draft claim should be accompanied with a covering letter, explaining the reasons for your action and offering the search engine an opportunity to resolve the matter before you formally file for legal proceedings. At this point, your case should be passed on to the legal team at the search engine provider and hopefully your case will now be properly assessed by their legal people.
File a claim in the High Court
If you have not received a reply to your draft claim, you should consider filing a right to be forgotten legal proceedings in the High Court. After filing, you will have up to 6 months to serve the claim on the search engine provider, if the search engine is located outside of the UK.
Serve your stamped claim form informally
At this point you should serve your right to be forgotten claim informally on the search engine provider. They should receive all the legal documents as well as the stamped claim form, together with a covering letter explaining your legal position. Explain that this is the last opportunity before you seek permission from the court to serve the claim outside of the jurisdiction. At this stage, the lawyers in the UK should get involved and they will advise you on the merits of your claim in accordance with English law. If you have a strong case, you should expect the advice to be in favour of removing the offending links and this is what is in fact likely to happen.
Will the search engine defend a right to be forgotten for legal proceedings
Whether the search engine would decide to defend a right to be forgotten legal proceedings would depend on the advice given to the search engine company but not only. Sometimes the search engine provider will tell you that they will defend your right to be forgotten for legal proceedings even if the odds are against the search engine. This might be due to a matter of principle, where someone feels very strongly about not having the offending links removed from search results.
The search engine provider may use its financial strength to try and intimidate you. This is where individuals who have nothing left to lose tend to differ from those who still feel that they have everything to lose. Those who feel they have nothing to lose may decide to pursue their case and hopefully call the search engine’s bluff. Those who feel they still have a lot to lose, will often take the decision to not pursue the case because of fear of financial ruin.
Statistically, we know that Google, by way of example, has only defended so far, a handful of right to be forgotten for legal proceedings in the UK. The decision to defend a right to be forgotten legal case carries a major risk to the search engine, because losing such a case would have massive implications to tens of millions of people across Europe. There are very few records of any other search engine provider defending right to be forgotten legal proceedings in the UK.
Advice on right to be forgotten legal proceedings
Starting legal proceedings is a very serious matter which you should avoid doing before speaking to a specialist lawyer who will advise you on the merits of your claim in more detail. In relation to right to be forgotten legal proceedings, you might benefit from legal advice before you submit your right to be forgotten request and certainly prior to serving a GDPR Notice on the search engine provider.
We recommend that at least the GDPR Notice is drafted by an experienced lawyer but we typically offer a fixed fee for drafting both the right to be forgotten request and the GDPR Notice, including service of the GDPR Notice and handling all the replies and the negotiations with the search engine’s legal team. You should always conduct yourself strategically, taking advantage of all the possible options, possibilities and strategies before formally serving formal right to be forgotten legal proceedings.
