Many people might have had the experience of searching up their own names on the Internet. These web searches give us the means to dig up nostalgia-evoking old photos or glorious award-winning records. However, if we end up finding criminal records, ugly scandals, or reputation-damaging signs of a dark past, the consequences can be unbearably painful. These consequences could be arguably worse if our reputation were to be further tarnished by false claims about our past, plastered across the Internet.

In 2016, the European Union (“EU”) incorporated the “right to be forgotten” into EU law for the first time, out of the public’s rising need to claim this right given widespread Internet use. On the other hand, Taiwan’s first “right to be forgotten” litigation case was heard by its Supreme Court in 2020 and remanded back to the High Court for re-adjudication in 2022[1]. This case reflects Taiwan’s current stance on “the right to be forgotten” and warrants our further analysis and discussion.

I. Facts of the case

In 2008, the owner of the Dmedia T-REX baseball team (“Mr. A”) faced prosecution in a match-fixing scandal and was declared innocent in 2013, after five years of ongoing legal proceedings. However, many years after the scandal, Mr. A’s personal details and involvement in the scandal did not only remain intact on the Internet but could also be easily found with a simple Google search of Mr. A’s name. Moreover, Google’s search bar had the tendency to suggest or predict the keyword “the reality behind the mismanagement of Mr. A’s baseball team”[2] (“the Suggested Keyword”) as Mr. A’s name was typed into the search bar, allowing the user to conveniently click on the Suggested Keyword with considerable ease.

Mr. A was dissatisfied and appalled by the fact that the false claims made about him in bad faith remained on the Internet despite the court’s declaration of his innocence. In response, Mr. A started filing civil lawsuits against Google in 2014[3], claiming that Google was infringing on his “right to reputation, privacy rights, and right to be forgotten”, demanding the removal of certain search results from the Google search engine, and the Suggested Keyword.

II. The significance and disputes in “the right to be forgotten”

1. “The right to be forgotten” falls under the protective scope of “the right to privacy”, and is a fundamental right protected under Taiwan’s Constitutional law

“The right to be forgotten” is defined as “the right of data subjects to request for the deletion of search results that are outdated, inaccurate, or no longer relevant, and to remove the keywords that could be used to search and link to information that is already disclosed to the public”.[4] This right was clarified through an EU judgment[5] in 2014 and was further incorporated into the EU’s General Data Protection Regulation (“GDPR”).

However, there are no explicit legal provisions in Taiwan that directly grant individuals the “right to be forgotten”. As such, when faced with this claim, the court of first instance (i.e., the Taiwan Taipei District Court) initially found that this case was going to be determined by applying Taiwan’s regulations on privacy rights. Surprisingly, the Taiwan High Court took a different approach. By referring to Interpretation Shi-Zhi No. 603, the High Court argued to include “the right to be forgotten” into the scope of “privacy rights” as a fundamental right protected by Constitutional law. Under this Interpretation, “informational privacy” and its broader umbrella term “information self-determination” were defined as “the people’s right to know, control, and correct different aspects associated with their personal information, including the decision to expose personal information or scope of permissible exposure, and the method, timing, and audience to expose such information.” By using the definition above, the Taiwan High Court concluded that “the right to be forgotten” should be included under “the right to privacy” and should thus be given protection under Taiwan’s Constitution.

2. The conflict between the right to privacy (right to deletion, right to be forgotten) and freedom of speech

In this case, although the court acknowledged that the right to be forgotten enjoys constitutional protection, it also held that Internet search results cannot be restricted or deleted arbitrarily, because they are also protected by Article 11 of the Constitution, under freedom of speech.

In attempting to resolve the conflict between these fundamental rights, the first instance and second instance courts both believe that considerations such as “the relationship between the nature of the deleted content and public interest, the purpose behind disclosing such content and its significance on society, the social status or influence of the data subject, the extent of harm inflicted on the data subject resulting from the disclosure and its degree of irreversibility” as well as other factors should be taken into account. At the second instance, the Taiwan High Court found that Mr. A’s scope of privacy rights is further restricted because the search results relevant to this case – including publications related to “Mr. A’s alleged involvement in the match-fixing incident” or news articles related to Mr. A’s family business or marital status – are considered to be “public affairs of public concern, which retains importance that has not been diminished over time.” Moreover, since Mr. A is the owner of a professional baseball team and thus a public figure, he enjoys a narrower scope of privacy rights. Therefore, given that the search engine provider is only providing the disputed search results and strings for the purpose of “public interest,” the courts concluded that the interference with Mr. A’s privacy rights is justified.

III. Exercising the “Right to Be Forgotten” under the Personal Data Protection Act (Article 11)

To exercise his “right to be forgotten”, Mr. A also demanded that Google cease from collecting, processing, or using his personal data in accordance with Article 11 of the Personal Data Protection Act (“PDPA”). However, in its rebuttal, Google argued that its search engine merely arranges and presents information that is already publicly available on the Internet, the action of which does not fall within the scope regulated under the PDPA. In response to this, the first and second instance courts ruled that the algorithm’s automatic retrieval and indexing of information relevant to Mr. A from public web pages – as well as generating search results or predictive search suggestions based on the insertion of Mr. A’s name as a keyword (i.e., the Suggested Keyword) – should be considered as “collection and processing” of personal data. As such, these courts found that the operations of Google’s search engine pertinent to this case should be subject to PDPA regulations.

Article 11, paragraph 2, 3, and 4 of the PDPA respectively lists three situations where a data processor must delete and cease from collecting, processing, or using a data subject’s information upon request. These situations include (1) when the “accuracy of the data in question is in dispute,” (2) When the specific purpose of data collection no longer exists, or upon expiration of the relevant time period; or (3) when there is a “violation of the PDPA with regard to the collection, processing, or use of personal data.”

In the end, the first and second instance courts found that the Suggested Keyword does not give rise to a “dispute regarding the accuracy of personal data”, because the string originates from a post by Mr. A on a publicly available online platform. Additionally, the court opined that the search results are fact-based, and were not fabricated nor proven false by the plaintiff. Therefore, this case does not qualify under Article 11, paragraph 2 of the PDPA as a “dispute regarding the accuracy of personal data.”

Furthermore, the content of the disputed search results concerns public affairs that continue to be of local and international interest. As such, the content’s “specific purpose” under the PDPA (in this case, satisfying the public’s “right to know”) has not been diminished. Therefore, the forepart of Article 11, paragraph 3 of the PDPA (i.e., “specific purpose necessitating personal data collection disappears, or if the deadline expires”) is not satisfied.

Moreover, the PDPA provisions relevant to this case – pertaining to the collection or processing of information in violation of the PDPA – are Article 5[7] and Article 19.[8] Both the first and second instance courts found that in this case, the search engine is only acting as a medium that “collects information that is already publicly available on the Internet,” and serves to facilitate the dissemination of information, thereby safeguarding the public’s right to know. Given this, the courts found that the preservation of the search results serves public interest. As such, the courts concluded that Google’s actions are undoubtedly in full compliance with Article 5, and Article 19, paragraph 1, subparagraphs 6-7 of the PDPA.

Based on the above reasons, both the first and second instance courts rejected Mr. A’s request to claim the “right to be forgotten.”

1. Opinion of the Taiwan Supreme Court

The Taiwan Supreme Court does not oppose the lower courts’ views on the content’s factual disputability based on Article 11, paragraph 3 of the PDPA.

However, the Supreme Court found that the first and second instance courts failed to take several factors into consideration when analyzing whether the search engine’s actions have exceeded the “necessary scope of purpose allocated to the collection and processing of data” which they characterize as:

“the search engines’ nature of service, the impact on the users caused by the deletion of the disputed search results, the status of society when the disputed search results were publicized and the subsequent aftermath, the significance of public benefit involved in the disputed information, the necessity of preserving privacy under the circumstances, the degree of harm inflicted on the plaintiff as a result of publicizing the data in question, the plaintiff’s role as a public figure, and the causal relation between the search engine’s action and the result that is harming the plaintiff.”

Given the above, the Supreme Court found that the lower courts may have overlooked key considerations and hastily refused Mr. A request to delete the disputed search results on the bases that “the personal data in question is factually correct, the disputed information originated from public webpages available to the public, and the purpose of data collection still exists.” As such, the Supreme Court remanded this case in part back to the Taiwan High Court for re-adjudication.

2. Judgment by the Taiwan High Court on first remand from the Supreme Court

After the Taiwan High Court reexamined this case, various factors were considered in the Court’s assessment of Mr. A’s request to remove the search results. These factors include the actual content displayed on the website, deliberation over whether deletion would impact the “public’s right to know”, consideration of public interests such as “enhancement of informational dispersal” and “public access to sufficient information”, and the assessment of whether the search engines’ purpose in publishing the search results have disappeared.

i. An online article titled “People like Mr. A should take a baseball bat through their mouth and out their ass.”

This article refers to two media reports about match-fixing cases and uses profanity to describe the writer’s disappointment in Mr. A’s actions. During the retrial of the case, the High Court held that this article “is devoid of any statements of fact and is composed exclusively of cursing as an emotional outlet,” which does not fall under the protective scope of free speech in Taiwan. As such, even if the online article were deleted, its deletion “would not affect public interests such as the public’s right to knowledge.” In addition, although search engines may hold the business purpose of collecting information in making the website accessible to the readers, the Court believes that the match-fixing scandal is no longer newsworthy. As such, the event informing the online article has completely lost its commercial value, which means that the “search engines’ purpose in maintaining the search result” no longer exists. The Court also held that Mr. A should be allowed a greater degree of privacy, since he has departed from his role as the baseball team’s representative person, and clearly intends to remove himself from the public sphere by changing his name. Given the above, the Taiwan High Court held that “the plaintiff may demand that Google remove the disputed search results based on Article 11 of the PDPA”.

ii. The remaining search results in dispute

Most of the remaining search results focus on describing the facts around the match-fixing cases, Mr. A’s involvement and his mischaracterization of his age and educational background, general impressions of the match-fixing scandals, etc. After the High Court re-examined the case, it still ruled that the contents of the search results relate to public interests (i.e., “public’s right to know”, “enhancement of informational dispersal”), and is in line with search engine’s business needs. As such, the maintenance of the search results on the Internet does not exceed the scope of “specific purpose” outlined in Article 11 of the PDPA.

The Court also held that the personal data in question – such as the fact that Mr. A made false claims about his age and education – is information relevant to the match-fixing incident of concern to the public. As such, keeping this information available on Google serves public interests.

On the other hand, the Court also found that the “personal data” in dispute was public information that was confirmed to be factually correct through a court judgment that is accessible to the public. Moreover, the Court found that the “personal data” disclosed in the remaining search results is not the main point in the match-fixing incident. Given the above, the Court ruled in Google’s favor, stating that maintaining Mr. A’s data on the website does not cause him substantial harm.

Given the above, the Taiwan High Court ruled that the search engine is under no obligation to remove most of the search results, except for the one online article mentioned featuring obscene profanity.

IV. Conclusion

While we are in the age of the Internet and technology, the flow of information is not only rapid and far-reaching but is also retained on the Internet for an extended period of time. Once a person’s identity information is exposed online, having this information fade from everyone’s memory is no easy feat. Given this, to “claim the right to be forgotten” to protect our personal identity information from being illegally infringed on has become a popular topic of discussion. In Mr. A’s case, the Taiwan courts acknowledge that the right to be forgotten is protected by law. However, the scope of protection appears to be quite limited, given the existing conflict between the rights to be forgotten with those of free speech.

This is a translation of the original article in Chinese, which can be found here. Written by Gary Kuo, and May Lu. Translated by Emma Chiu.

If you have any questions or require additional information on this topic, please feel free to contact Gary Kuo at gkuo@winklerpartners.com.

13 May 2024

[1] This case is currently under appeal at the Taiwan Supreme Court.

[2] This is the title of the article posted by Mr. A on 23 July 2008 on PTT, which is a popular discussion forum in Taiwan. The content of the article insinuates that the baseball players’ low salaries are incentivizing them to purposefully lose matches in exchange for bribes.

[3] In 2014, Mr. A started out by filing a civil lawsuit against GOOGLE INTERNATIONAL LLC TAIWAN BRANCH (U.S.A.) (“Google Taiwan”)). The case was dismissed by the courts (i.e., Taipei District Court Civil Judgment No. 103-Su-2976, and Taiwan High Court Civil Judgment No. 104-Shang-389) on the basis that Google Taiwan is a nonparty, given that it is not authorized to manage or maintain the search engine’s operations, and thus not the infringing party sued by the plaintiff.”

[4] Combination of the first and second instance courts’ definitions of “the right to be forgotten”.

[5] Google Spain SL and Google Inc. v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González (2014)

[6] The plaintiff previously filed the following lawsuits, claiming compensatory damages: Taiwan Shilin District Court Judgment No. 103-Su-541, Taiwan High Court Judgment No. 104-Shang-1084, and Taiwan Supreme Court Judgment No. 106-Tai-Shang-2652. The Plaintiff raised the lawsuit on the basis that “Liberty Times reporter engaged in defamation by writing an article about the Plaintiff, through selectively reporting about the Plaintiff’s misdescription of his age and educational background”. However, the courts ruled that “since the Plaintiff is a public figure, and the published content (i.e., Mr. A’s mischaracterization of his age and educational background) is generally consistent with fact and falls outside the scope of Mr. A’s private morality, Liberty Times did not unlawfully infringe on the Plaintiff’s reputation, and is not liable for damages nor obliged to issue an apology.”

[7] Article 5 of the Personal Data Protection Act: “The collection, processing and use of personal data shall be carried out in a way that respects the data subject’s rights and interest, in an honest and good-faith manner, shall not exceed the necessary scope of specific purposes, and shall have legitimate and reasonable connections with the purposes of collection.”

[8] Article 19 paragraph 1 of the Personal Data and Protection Act: “Except for the personal data specified under Paragraph 1 of Article 6, the collection or processing of personal data by a non-government agency shall be for specific purposes and on one of the following bases:[…](6) where it is necessary for furthering public interest; (7) where the personal data is obtained from publicly available sources, unless the data subject has an overriding interest in prohibiting the processing or use of such personal data”

Article 19 paragraph 2 of the Personal Data and Protection Act: “A data collector or processor shall, on its own initiative or upon the request of the data subject, erase or cease processing or using the personal data when it becomes aware of, or upon being notified by the data subject, that the processing or use of the personal data should be prohibited pursuant to the proviso to Subparagraph 7 of the preceding paragraph.”