Case Law: ABC v Google Inc, Some procedural reminders for those seeking to enforce “the right to delist”

The judgment in ABC v Google Inc ([2018] EWHC 137 (QB)),  handed down on 1 February 2018, provides some useful procedural reminders for individuals seeking to the Courts to enforce the “right to delist” (otherwise known as the “right to be forgotten”) against Google.

The “right to delist” derives from the judgment of the CJEU in  Google Spain SL v. Agencia Espanol de Proteccion de Datos (AEPD) (Case C-131/12, 13 May 2014) [2014] QB 1022 which established that, in some circumstances, individuals had a right to require search engines to “delist” search results concerning historic information.  The case of NT1 v Google LLC, the first to be tried in England and Wales in relation to this right will be heard by Warby J later this month (see the PTR judgment [2018] EWHC 67 (QB)).

The claimant was a litigant in person who complained that news reports listed on Google searches against his name referred to a conviction which was spent under the Rehabilitation of Offenders Act 1974.

He sought an interim injunction requiring Google to block all access to the blogs which mentioned the conviction and to remove a news report on the website.   Mr Justice Julian Knowles dismissed the application due to various procedural errors by the claimant.

There are important procedural reminders in the judgment:

1.    That the proper defendant in claims against Google is no longer Google Inc but Google LLC following a change in the company’s corporate structure in 2017 [12].

2.  As Google LLC is a Delaware Corporation with a principal place of business in California, claimant who wishes to bring a “right to delist” claim must first obtain permission to serve the claim form on Google outside the jurisdiction [13].  The claim cannot be served on Google UK Limited (which does not operate the search engine) [13].

3.  If an application is made for interim injunctive relief then, as the right to freedom of expression might be affected, the application must be brought on notice [15].

As the claimant’s application was brought against the wrong company, without permission to serve out having been obtained and without notice to the defendant the application failed.

It should, however, be noted that an application for injunctive relief can, in appropriate circumstances, be made against a foreign defendant at the same time as an application for permission to serve proceedings out of the jurisdiction.  This was the procedure adopted in the case of Hegglin v Google Inc ([2014] EWHC 2808 (QB)) – where permission was granted but the injunction application was put over to the trial of the action.