Dutch Surgeon wins ‘right to be forgotten’ Case

01 February 2019

Author: Stephanie Johnston
Practice Area: Healthcare
Sector: Healthcare

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What is the right to be forgotten?

The ‘right to be forgotten’ was first recognised by the Court of Justice of the European Union (‘CJEU’) in the case of Google v AEPD & Costeja Gonzalez. In summary, if information is found to be ‘inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which [it was] processed and in the light of the time that has elapsed’, the continued indexing of the links to that information by a search engine, should be removed by the operator of the search engine at the request of the affected individual, or by the direction/order of the relevant national statutory or judicial authority.

The ‘right to be forgotten’ was further enshrined into UK law with the implantation of the General Data Protection Regulation (‘GDPR’) in May 2018. Article 17 of GDPR introduces a qualified right for individuals to have personal data erased, known as the ‘right to erasure’ (or the Right to be Forgotten).

The Facts

A recent case before the Court of Amsterdam addressed the ‘right to be forgotten’ of a Dutch surgeon (which is believed to be the first such case involving Google and a medical professional).The surgeon was subject to a disciplinary procedure following a complaint made by a patient about his post-operative care.This procedure initially resulted in a period of unconditional suspension being imposed on the Surgeon’s registration. On appeal that was reduced to a period of conditional suspension.

Subsequently, when the surgeon’s name was entered in Google, the first results were links to a website that contained a ‘blacklist of doctors’. The surgeon applied to the Court seeking that Google be compelled to remove the relevant link.

The Judgement

The District Court ruled that the surgeon’s right to privacy weighed more heavily than the interest of the public. Based on the factual background, the Court’s opinion was that the processing of the personal data was ‘irrelevant and excessive’ and required the link to be removed.

The Court rejected Google’s argument that removing the link would mean that information about the surgeon’s actions would no longer be accessible via the search engine, given that the information was still publicly accessible via the Dutch Medical Register.

Implications of the judgement

Whilst, this is a non-UK judgement, it may be useful as a comparative case, if a similar issue was to be considered by a UK Court.

Often, healthcare professionals find themselves in the public eye when subject to disciplinary proceedings, especially if proceedings are particularly emotive. Healthcare professionals should, therefore, be aware that in certain circumstances they may have a ‘right to be forgotten’, especially where disciplinary proceedings have been brought into the public domain.

Should you require any advice on the issues addressed by this Article please do not hesitate to contact Stephanie Johnston.

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