The High Court has set aside a Circuit Court order in a data protection dispute over a Google search result referring to former local election candidate Mark Savage as “North County Dublin’s Homophobic Candidate”. It reinstated the Data Protection Commissioner’s determination that she could not conclude a breach of the Data Protection Acts had occurred.
Mr Justice White delivered the judgment on 9 February 2018 on appeals limited to points of law. The Commissioner and Google Ireland Limited had appealed the Circuit Court’s decision, which had allowed Mr Savage’s challenge to the Commissioner’s 2015 ruling.
The dispute arose after Mr Savage contested the Swords Ward seat on Fingal County Council in the May 2014 local elections. A Reddit discussion about his campaign leaflet included the disputed heading. Mr Savage complained to Google in August 2014 and sought removal of the search result. The Commissioner rejected his complaint in March 2015, concluding that the result represented a forum user’s opinion and that indexing it was not unwarranted by prejudice to his rights or legitimate interests.
The Circuit Court allowed Mr Savage’s appeal in October 2016. It reasoned that the heading, viewed on its own and without quotation marks or other qualification, appeared to state a verified fact. The Circuit Court acknowledged that the full Reddit thread could make clear that the original poster was expressing an opinion, but concluded that the Commissioner had erred in her assessment of the heading.
The High Court held that the Circuit Court was wrong to assess the heading in isolation. It said the court had a duty to consider the underlying discussion thread, and that considering the thread meant it could not conclude the search result was inaccurate or factually incorrect. It also found that the Circuit Court had not identified a serious error in the Commissioner’s reasoning or properly applied the deferential review standard set out in earlier cases.
The High Court further held that requiring Google to add quotation marks or parentheses would involve editing the heading. It said the relevant search-engine responsibility under the Google Spain decision was to delist a result when the applicable criteria were met, not to edit search results. The court did not decide any defamation issue.
The court vacated the Circuit Court order and restored the Commissioner’s original determination. The judgment was confined to the legal principles governing the statutory appeal; it did not determine any defamation proceedings.