Has the 'Right to be Forgotten' itself been forgotten?
A few years ago, the ’Right to be Forgotten’ was all the rage. It seemed that wherever you looked in the media law landscape, the European courts were developing this concept as an adjunct to privacy and data protection laws.
And then in 2018, along came the General Data Protection Regulation ("GDPR"), which included Article 17 - the Right to Erasure (aka the Right to be Forgotten). The GDPR was incorporated into UK law by the Data Protection Act 2018.
The GDPR was widely publicised at the time, and some of us (well, me) expected that editors would be receiving a fair number of requests for erasure. And in preparation for the expected flood of applications, familiarising ourselves with the journalism exemption contained in Article 85 of the GDPR became a priority. The UK version of Article 85 became part of UK domestic law by being included in Schedule 2 of the 2018 Act.
And what happened? Well, not a lot. Various publishers received occasional requests for erasure, but as time went by, the trickle of applications dried up. Had the ’Right to be Forgotten’ itself been forgotten? Until last week, I would have said "yes, probably".
So what happened last week? Well, in two different parts of the country, two editors received erasure requests. Like buses, you don’t see one for years and then two come along at the same time.
It was interesting to compare the applications. The first was analytical and detailed. It identified the URLs of five articles and six images that had been published a few years ago, as part of a report of a civil case in which the applicant had been a witness. The applicant asserted the right to erasure contained in Article 17, and (fairly aggressively) stated that the publisher had no option but to comply with the request. Funnily enough, the applicant did not feel the need to mention Article 85 or Schedule 2 of the 2018 Act.
The second application was quite different. It was a request by the mother of a teenager who had been convicted of a knife crime three years ago (so it had not become a spent conviction), for the report of his arrest and charge to be taken down. She said her son had turned his life around and was now a respectable, upstanding, member of his local community. Her request was simply based on a desire to improve her son’s prospects, but the legal basis was clear: unknowingly, she was making an erasure request.
The legal response in both instances was the same: both editors would be entitled to reject both requests by relying on the journalism exemption.
So, what exactly does the journalism exemption say?
The relevant provision in the Schedule to the Act begins by setting out the conditions that a journalist/publisher must satisfy:
- use personal information about a living individual for a journalistic purpose;
- hold the information with a view to the publication of journalistic material (which includes holding it after publication);
- reasonably believe publication would be in the public interest;
- reasonably believe that complying with the erasure request would be incompatible with your journalistic purpose.
- form, and be able to demonstrate, a reasonable belief that publication would be in the public interest and that complying with an erasure request would be incompatible with your journalistic purpose;
- have regard to specifically identified industry codes or guidelines that are relevant to you; and
- consider the general special public interest in freedom of expression and information.
Condition 6 is interesting. The Act refers only to the BBC Guidelines and Ofcom Broadcasting Code, and to the Editors’ Code of Practice. There’s no mention of IMPRESS. So to rely on the exemption, members of IPSO have to bear in mind the Editors’ Code, but members of IMPRESS are not obliged to consider its Standards Code.
These seven conditions (six for IMPRESS members) are fairly onerous, and although there is not much case law about the journalism exemption, it’s clear that the Courts will ensure that each condition has been met. "Reasonable belief", in particular, is not a foregone conclusion.
Moving on, you have satisfied all these conditions, and the journalism exemption is available to you. Congratulations - but then what?
Well, what the journalism exemption does not do is give journalists a blanket exemption from the whole of the Data Protection Act 2018 and the GDPR. But it does exempt journalists from 21 obligations which are specified in the GDPR, which cover a range of requirements, from lawfulness to criminal convictions to the notification of data breaches.
And crucially for present purposes, the right to erasure is excluded.
It was on this basis that both editors were advised last week that the two requests for erasure could lawfully be rejected.
Of course, the law is one thing; reality is another. As a former Lord Chief Justice once said: "lawyers advise; editors edit". So just because an erasure request may lawfully be rejected, that doesn’t mean you have to do so. There may be any number of commercial, editorial, local, reasons why an editor may want to comply with an erasure request, despite being legally entitled to decline. It’s all part and parcel of having to make tough editorial decisions.
And finally, to return to my original question (has the ’Right to be Forgotten’ itself been forgotten?), the answer is clearly ’no’. Those who feature in your stories may not exercise the right very frequently, but it’s still there, ready to catch out the unwary.
This is why the journalism exemption remains an important legal shield for all journalists and publishers. Dusting it off from time to time is a good thing!