I got n(EU) rules”: a worrying development in the right to be forgotten?

applicants would be successful. Like in Pichon, Ireland’s interference in the right to freedom of conscience would likely pass the threshold of the triple pronged test. At the point the case comes to the ECHR, abortion will be legal in Ireland, and medical providers will be required to give referrals. Restricting freedom of conscience to ensure that women have reasonable access to healthcare have been confirmed as a legitimate aim, and necessary for a democratic society in the Polish cases. Additionally, the Court approved of the referral system in P. and S. v. Poland. The Court also often looks for a “European Consensus” when dealing with controversial issues. In 2010, the Parliamentary Assembly issued Resolution 1763 on the right to conscientious objection to lawful medical care. Although non-binding, parliamentary resolutions can be very influential in the Court. This resolution held that no individual nor body could be pressured into or discriminated against for refusing to perform or assist in abortions, amongst other controversial medical practices. As such, the Court may decide that there is a European consensus on the allowance of conscientious objection and allow States a narrower margin of appreciation. However, this resolution still maintains that patients must be referred to a non-objecting provider of the procedure. This means that if Ireland didn’t put a referral system in place, the Court may intervene and decide that Ireland is permitting obstacles in accessing reproductive healthcare. Overall, if a case made it to the ECHR, the Court would have to balance the rights and freedoms of the pro-life practitioners and the rights and freedoms of women seeking access to reproductive healthcare. As the practitioners work in the public sphere, and because their failure to act harms the rights of others, their moral and religious beliefs would not be covered by Article 9. Not only would a referral system not infringe on the rights of conscientious objectors, but if there was not such a system in place, Ireland would be violating the European Convention on Human Rights.

BLÁNAID NÍ BHRAONÁIN

ALUM

As more and more of our lives are recorded online, each of us leaves behind a growing ‘digital footprint’ of data – for better or worse. The law has often struggled to keep up with technological advances in this new and unfamiliar territory. It is understandable, then, that the EU waded into this online ‘Wild West’ and attempted to lay down the law with broad new principles, such as the protection of personal data and the ‘right to be forgotten’. However, sweeping privacy protections inevitably affect the interests and rights of other individuals, as well as the general public interest in maintaining a society where information is expressed and exchanged freely. A recent decision in the Netherlands highlights this disconnect. In its 2014 decision in Google Spain v González, the Court of Justice of the European Union considered the application of the Data Protection Directive (95/46/EC) to the indexing of websites by internet search engines. The case concerned newspaper articles from 1998 which announced a forced auction of properties in order to recover Mr González’s social security debts; googling his name revealed links to the articles. Advocate General Jääskinen, whose role is to deliver an impartial opinion to the Court, took the view that as Google merely indexes and directs users to third-party sites, it does not fall into the category of a ‘data controller’ under the Directive. Moreover, he noted that Google’s processing of personal data is carried out by the trawling of the internet by ‘Googlebot’ – an entirely automated process which could not have been envisaged at the time the Directive was written. However, the Court disagreed, holding that Google was a data controller and that a data subject had the right to object to the indexing of links about them. The controller must consider the request and balance the subject’s right to privacy against the general right to freedom of expression - the economic interests of the search engine being of lesser significance. While not quite reading a full-blown ‘right to be forgotten’ into the 1995 Directive, the Court opened up a new arena for such claims: it stated that there was no need for a data

subject to show that the information was inaccurate, but that being ‘inadequate, irrelevant or excessive’ could be enough. Furthermore, the data subject did not need to show that the information caused any prejudice to their interests. Article 17 of the General Data Protection Regulation (2016/679) (‘GDPR’) built on the broad pro-privacy position of the Court in González and created a general ‘right to erasure’ available in a range of situations. The data controller must show that there are compelling legitimate grounds to reject a data subject’s request for erasure. Article 85 of the GDPR acknowledges that these rights will impinge on the rights of others to freedom of expression; member states are tasked with balancing these rights in their national legislation that implements GDPR. Naturally, the variety of national regimes has led to a swathe of new decisions as statutory regulators across Europe grapple with the new claims arising from the ‘right to be forgotten’. While on the facts in González the de-listing of links seemed relatively harmless, some subsequent cases raise much more finely balanced conflicts of rights. In a recent decision (case C/13/636885/HARK17- 301), the District Court of Amsterdam sided with a surgeon who had been conditionally suspended for medical negligence and sought erasure of links to a site showing her name on a ‘blacklist’ of doctors maintained by an advocacy group. Google had refused her request, saying that the material related to matters of public importance. The Dutch Data Protection Authority also refused to assist her because the information was correct and it concerned her professional practice. In applying Article 17 of the GDPR, the District Court of Amsterdam followed the CJEU decision in Google Spain v Costeja Gonzáles. It also considered the Dutch Supreme Court’s decision in X v Google, which referred to the rights to respect for private and family life and protection of personal data, as protected by the Charter of Fundamental Rights of the European Union. In this case, the Supreme court noted that these interests generally outweigh not only the economic interests of search engines, but also the legitimate interests of those using search engines. The latter is a much more significant encroachment on the freedom of expression and association. Even though ‘X’ was convicted of a serious crime at first instance, which was covered in the media, the Court held that this did not automatically sufficiently engage the public interest to justify the conviction appearing when the name of the applicant was searched; rather, a case-by-case balancing exercise must be carried out. In the case of the doctor, it was argued that there was a limited public interest because the links related to a single, unrepresentative incident and they were disproportionately publicised (the first three results when her name was searched), especially in light of the absence of interest from other media outlets. The court was influenced by the negative connotations of placing a name on a ‘blacklist of doctors’. The Supreme Court previously found the advocacy group’s ‘blacklisting’ of doctors who had not been subject to disciplinary measures to be unlawful. The Court was not convinced that a doctor has a ‘public function’ in the same way as a politician does and should thus be expected to tolerate more criticism than the average citizen. On the basis that there were no special circumstances to justify the applicant’s right to respect for privacy and personal data giving way to the public interest, and that the public could find the information if they went to the professional regulator’s website and specifically searched for it, the Court ordered Google to remove the links. This decision by the District Court of Amsterdam has received considerable attention as it represents a significant expansion of the ‘right to be forgotten’ as balanced against general arguments for the public’s right to access information. However, there are several questionable steps in the reasoning which led the court to this decision. The court seemed to take the existence of the doctor’s sanction on the medical regulator’s website as a factor weighing against the legitimate interest of the website in publicising the information. However, since the medical register’s sanctions do not appear in a Google search, a potential patient is highly unlikely to find out about the suspension unless they are already suspicious. Similarly, the lack of interest from other media outlets – a factor which the doctor sought to rely upon in her favour – surely highlights all the more that the public will be unable access the information unless it is made available through Google’s indexing. Furthermore, the analysis of the relevance of the data subject’s profession and status as a doctor is lacking. Although the doctor’s role is not directly comparable to that of a politician or ‘public figure’, that does not mean that the role should not be viewed in light of the particular privileges and responsibilities which accompany it. Indeed, the very fact that such professionals are subject to the decision-making of a regulatory body demonstrates that they are not purely private actors. It is to be hoped that the right to be forgotten and its interaction with other competing rights will be analysed more thoroughly in future cases.

Biology to Identity: Progress and Problems with Transgender Recognition by the European Court of Human Rights

v UK, the Court held that legislation criminalizing homosexual conduct violated Article 8, as sexual EOLANN DAVIS JS LAW orientation is an “intimate essential manifestation of a human’s personality”. While these cases can be distinguished on the facts, a person’s gender identity The approach to the recognition of transgender is just as intimate and essential a manifestation of a people by the European Court of Human Rights human’s personality as their sexual orientation. (hereinafter, ‘the Court’) has undergone a complete Progress overhaul in recent years. Whilst initially slow to respond to change, the Court now affords greater protection to the privacy rights enjoyed by transgender people under Article 8 of the European Convention on Human Rights (hereinafter, ‘the Convention’). Notwithstanding the progress made, there are still several issues facing transgender people that need to be addressed by the Court. In Goodwin v UK, the Court drastically departed from its earlier decisions regarding the updating of official documents. The decision was a refocus on individual rights. Scientific knowledge was held to no longer be a determining consideration, with the guarantee of individual privacy under Article 8 being given primacy in the Court’s considerations. Early jurisprudence While the outcome reached in Goodwin is a positive step forward in the protection of privacy Article 8 of the Convention guarantees the ‘right rights for transgender people, the route the Court to respect for private and family life’. Initially, the took in reaching this conclusion was arguably just Court was slow to afford the protections of Article as questionable as the earlier case law which it had 8 to transgender people seeking recognition of their held to be unsatisfactory. The Court found a lack of gender. In both Rees v UK and Cossey v UK, the evidence of a common European position, but cited Court held that recognition of transgender people Australia and New Zealand as examples supporting through updating the Birth Register would amount a continuing international trend in favour of legal to a positive obligation on the UK. A wide margin recognition of a transgender person’s new identity. of appreciation had to be afforded to the UK in this Justifying action within the jurisdiction of the matter due to a lack of European consensus regarding Convention based on trends observed outside that the rights of transgender people. Both judgments jurisdiction is a questionable approach. This was also lacked any strong evidence to substantiate this unnecessary, as the wording of Article 8 allows for claim that no consensus existed. A more evidencethe finding in Goodwin to be made without any need supported statement of the European consensus was for recourse to examination of European consensus made in Cossey by the dissenting Judge Martens. or international trends. He argued that an emerging European consensus in the applicant’s favour was indicated by the fact that fourteen states had made gender reassignment surgery and legal recognition of transgender people’s genders available in recent years. Following Goodwin, the Court’s expansion of its protection of rights under Article 8 to novel situations was surprising given its previous deferential position to member states In Van Kuck v Germany, it was held that the failure of an insurance company to reimburse The first major success for transgender recognition the cost of the applicant’s hormone treatment and came in B v France. Here, the Court found a violation gender reassignment surgery violated Article 8. of Article 8 in the fact that B was forced to use an Recently, the Court has ensured that recognition identity card with an incorrect gender every day. rights are not contingent on any medical action to Subsequently, Sheffield and Horsham v UK seemed reassign gender. In Garçon and Nicot v France, the to be a step back, as Rees was reaffirmed. Again, the Court concluded that to hold otherwise would force Court emphasized the lack of European consensus, a person to relinquish their right to physical integrity as well as the uncertainty as to the essential nature to exercise their right to a private life, both of which of transgender identity. In these cases, the court are protected by Article 8. The same reasoning is clear gave greater consideration to these matters than in SV v Italy. In this case, the applicant’s rights had to the integral nature of gender to the applicants’ been violated as authorities had refused to change identities. In contrast, in the 1981 case of Dudgeon her male forename for over two years because she 6 · The Eagle Gazette Volume 5 Issue 2