While many South Africans may have typed their names into Google to see what fun results pop up, the fact that these results are permanent can be troubling – especially when the results call your character into question.
Speaking to BusinessTech, Verlie Oosthuizen – head of social media law at Shepstone Wylie – explained that “at this stage it is not possible to ask for Google to remove links associated with a name search in South Africa.”
She noted that this is known as ‘the Right to be Forgotten’, and was first developed in terms of a case against Google in the European Union – but was ultimately relatively limited in its scope.
“In that case, the court ordered that Google had to remove the links to the offending and outdated article that the Spanish National was complaining about,” she said.
“However, they would not order the newspaper to remove the article itself from its website. This meant that the links to the article could not be easily found and would not appear in a name search but the article was still accessible.”
“In South Africa, there is no ‘Right to be Forgotten’ at this stage. Google does not produce the defamatory content, it displays the links to that content,” she said.
“Therefore if the article is defamatory (and presumably this would need to be proved in court) then the publisher of the article would have to be requested and probably ordered by the court to remove the content.”
Oosthuizen said it was difficult to get these types of orders, although not impossible.
“If an order like that was available then the individual could ask Google to remove the link however this would presumably be unnecessary if the article had been removed by the website concerned,” she said.
Could this change?
Oosthuizen said that this rule will likely change with the introduction of the Protection of Personal Information Act (POPIA).
“In terms of POPIA, the personal information that is processed about a person must be relevant,” she said.
“If the information is very outdated or untrue, inappropriate or not connected to the purpose for which it is being processed then a person can ask for the information to be removed.”
“This would translate to instances where Google displayed links to outdated articles and a person asked for those links to be removed. The person’s right to privacy and the public’s right to access that information would be balanced before that step was taken though.”
However even when the POPIA is eventually introduced, the Right to be Forgotten is only going to be available in very limited circumstances, warned Oosthuizen.
“Each case will need to be looked at on its merits and it is impossible to anticipate when a responsible party will be forced to erase information,” she said.
“It certainly is not a magic wand that can be waved when something embarrassing is published about an individual. The content has to be outdated, irrelevant and inappropriate and these will be considered objectively and balanced against the freedom of expression principles and right to access information by the public.”
“Public figures, celebrities, politicians and businesses will have more limited rights than ordinary members of the public.”
Are there any other ways to hide your name from coming up in a search besides contacting Google directly?
“Unfortunately no,” said Oosthuizen.
“Google will collate information that is associated with your name in terms of algorithms etc,” she said.
“You can only request that certain links or information is removed in very specific circumstances where you can clearly show that Right to be Forgotten is applicable to you.”
“Reputation management online is quite difficult for individuals to achieve as search engines operate with algorithms and automated processes. It will be difficult to hide your name from an online search if you have an internet presence.
Therefore you have to ensure that the content that appears is not adverse, she said
“If you have misconducted yourself and it has been reported about or you have done it on social media it will be difficult to prevent this coming to light,” she said.