Seán Quinn, the Streisand Effect, and improving the operation of the right to be forgotten – updated

Google search RtbF notice

I have just conducted a search on a popular search engine for “Seán Quinn”, and the above message – that Some results may have been removed under data protection law in Europe – appears at the bottom of each page of results. Over the past weekend, there was widespread media coverage of attempts by Seán Quinn to rely on the EU’s right to be forgotten to remove newspaper articles from search listings that highlighted significant aspects of his bankruptcy and of his family’s lavish pre-bankruptcy lifestyle. This attempt at reputation management backfired spectacularly on him, and stands as an example of the Streisand effect, which is:

… a phenomenon that occurs when an attempt to hide, remove, or censor information has the unintended consequence of increasing awareness of that information, often via the Internet. It is named after American singer Barbra Streisand, whose attempt to suppress the California Coastal Records Project photograph of her residence in Malibu, California, taken to document California coastal erosion, inadvertently drew greater attention to it in 2003.

On Saturday, in the Irish Independent, Shane Phelan published the following story:

Revealed: Quinn family succeeds in campaign to erase press coverage of lavish lifestyle

Google delists dozens of articles on court battles and even €100,000 wedding cake

Members of ex-billionaire Seán Quinn’s family have mounted a successful campaign to have press coverage about their past ‘forgotten’ by Google.

Dozens of articles featuring Mr Quinn and his adult children have been ‘delisted’ by the world’s most popular internet search engine, including pieces about their extensive legal travails, lifestyles and a lavish family wedding involving a €100,000 cake.

The articles include an Irish Independent report about allegations made in court by the Irish Bank Resolution Corporation (IBRC) that the children used the Quinn Group as “their personal bank” and took €1.95bn out of the company. …

And, in an accompanying article – From €100k wedding cake, Christmas in jail and trips to Russia – 11 stories Seán Quinn’s family wants us to forget – Phelan points out that, while the articles still exist, they will be harder to find via Google’s search engine, so he links to 11 of the articles on that the Quinns want forgotten. An Editorial in the same newspaper yesterday raises important questions about the process by which the Quinns invoked the right to be forgotten:

… how this process is used, and how decisions on erasure are made, still leave many important questions unanswered which have implications for all citizens’ rights and the greater public good. …

The Quinn family members’ success in their application for delisting of certain articles about their court battles and lifestyle, as reported in this newspaper, puts the focus on how Google arrived at its decision. …

So, in another piece by Phelan, TJ McIntyre, associate professor at UCD’s Sutherland School of Law and chairperson of the civil liberties group Digital Rights Ireland, said that “there should be external oversight to ensure Google and other search engines are striking the right balance”. He made the same point in a radio interview, picked up by the Irish Times. And, in a follow-up story by Allison Bray in the Irish Independent, Antoin O Lachtnain, another director of Digital Rights Ireland, said that “how the ‘right to be forgotten’ is being implemented by search engines should now be reviewed by the Data Protection Commission”, and Liam Herrick, Executive Director of the Irish Council for Civil Liberties (ICCL) said that “there needs to be transparency” around delisting of content by public figures.

The right to be forgotten was established by the Court of Justice of the European Union in Case C-131/12 Google Spain in 2014. It has been subsumed within the right to erasure in Article 17 GDPR. Subsequent cases confirm that the Google Spain right to be forgotten is a right to have links removed from internet searches within the EU. Even though the links are removed from searches, the underlying reports remain, but if you can’t find them via Google, they might as well not be there at all. Search engines operating with the EU have forms to permit data subject to apply to have links removed (egs: Google | Bing), and they provide transparency reports with statistics about how many such applications were made and how many have been successful (egs: Google | Bing). But the transparency reports are not all that transparent, because they only provide general statistics, and don’t set out the grounds on which such applications have been made. Unsuccessful applicants can apply to data protection authorities (such as the Irish Data Protection Commission (DPC)), and those unhappy with such decisions can appeal to the courts. There is a little substantive information about such applications in DPAs’ annual reports, and there is a handful of cases in the courts (egs: Ireland | Northern Ireland | England & Wales); but the vast majority of applications are dealt with by the search engines, which provide no substantive information whatsoever about their cases. This is why we know so very little about why the Quinns were successful in their applications.

[Updates until 10 November 2021] Google notified the Irish Times that it has delisted at least a dozen articles and images relating to Seán Quinn and his family, so the paper has provided a list of the affected articles. Later coverage increased the number of affected articles: Google delists 74 Irish Times items about Seán Quinn and his family. And the Irish News has had two of its articles delisted. (more updates here) [End Update].

In the Google Spain case, the CJEU considered that links could be removed from searches where they pointed to stories that were “inadequate, irrelevant or no longer relevant”, but it emphasised that the links should not be removed where there is a “preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question”. Because search engines do not have to explain why they have removed links or not, we do not know why the links the Quinns successfully sought to have removed pointed to stories that were “inadequate, irrelevant or no longer relevant”, and why there was no or insufficient public interest in having access to those stories. Nor do search engines ask those whose stories are being delinked to comment as to why this should not happen. The BBC has been keeping a list of those of its stories it knows have been delinked by Google (surprise, surprise: several of the links de-linked in September this year refer to Seán Quinn), and other de-links are listed on the Lumen database, which collects and analyzes legal complaints and requests for removal of online materials on many grounds from many internet sites. But many right to be forgotten requests fly under the radar, which is why DRI and ICCL are calling for the processes followed by search engines to be reviewed by DPAs. If that is a result of this weekend’s Quinn stories, not only will the Quinn effect be another example of the Streisand Effect, it will be a good shorthand for improving the operation of the right to be forgotten.

Update (18 May 2022): The Spanish Data Protection Authority (la Agencia Española de Protección de Datos (AEPD)) has fined Google €10m for breaches of the GDPR by unlawfully transferring personal data the Lumen Project and for hindering the exercise of the right to erasure.

Update (22 August 2022): By way of rounding out all the updates in the comments below, on the Indo Daily podcast for 19 August 2022, host Fionnán Sheahan is joined by Shane Phelan, Legal Affairs Editor of the Irish Independent and Adrian Weckler, Technology Editor of the Irish and Sunday Independent to discuss “Sean Quinn and the ‘forgotten’ €100,000 wedding cake“.