What you can do if your right to be forgotten application fails?

A common question we receive from prospective clients is what happens if a right to be forgotten application fails? Is that the end of the road or is there anything further that can be done to block unwanted material from a search of your name online?

The good news is that if the application for the right to be forgotten fails, then you have the right to appeal to the Information Commissioner's Office (ICO). However, it is important to note that following the United Kingdom’s departure from the European Union, the ICO is no longer be able to consider complaints submitted by non-UK citizens who do not reside in the UK. If you are a non-UK citizen residing outside of the UK, then any appeal would need to be made to the relevant data protection organisation in your own jurisdiction.

For people who reside within the UK who wish to appeal against the rejection of an application for the right to be forgotten, the process involves writing to the ICO explaining what has happened. You will need to set out the application you have made, the reasons you gave to the search engine operator, and confirm the reasons why the search engine has rejected the application.

Once the ICO has your appeal, it will open an investigation and consider the application with a different, slightly wider, set of criteria than the search engine operators. The timeframe for a response to appeals from the ICO varies depending on their backlog but we usually receive a response within 6 months.

If the ICO finds that the search engine operator was wrong in rejecting the application for the right to be forgotten, they will write to the search engine and request that they reconsider the application. This very often results in the search engine operator accepting the original application and delisting the search results.

An alternative to appealing to the ICO is to seek a court order requiring the search engine operator to filter the search results. This can be much longer and expensive process, so we always recommend appealing to the ICO in the first instance.

What should I do next?

If you want to make an application for the right to be forgotten, or if you have already made an application and want to appeal a decision to the ICO, then we can help.

You can either use our online right to be forgotten application form, or you can contact us to have a discussion with a solicitor about how we can help.