In 2014, Europe’s top court ordered tech giant Google to remove from prominence links to a story detailing financial troubles of Mario Costaje Gonzalez, a move that birthed law changes and a new civil liberty for Europeans – the right to be forgotten.
Four years after the judgment, Article 17 of the General Data Protection Regulation was implemented in the European Union, cementing the right to be forgotten in law.
The legislation gave individuals the right to request for erasure of personal data stored by an organisation, such as Google, if there were grounds for the same.
Through that law, individuals can write to Google, requesting the removal of links directing internet users to specific content about themselves.
Twelve years after Mr Gonzalez’s victory, businesswoman Mary Wambui Mungai has gone to the Kiambu High Court and claimed that she, too, has a right to be forgotten, at least in relation to a Sh2.2 billion tax evasion scandal that came to a controversial end three years ago.
Ms Mungai, who also chairs the Athi Water Works Development Agency’s Board of Directors, has sued US-based Google LLC and its Kenyan sister firm, Google Kenya Ltd, seeking to pull down at least 35 links to websites that covered her tax evasion case between 2021 and 2023.
The judgment on Mr Gonzalez’s suit from the Court of Justice of the European Union is one of the primary pieces of evidence Ms Mungai is relying on to push for a judgment in her favour.
Ms Mungai argues that after the Chief Magistrate’s Court in Milimani allowed the Office of the Director of Public Prosecutions (ODPP) to withdraw a Sh2.2 billion tax evasion case on January 10, 2023, she earned the right to be forgotten.
Mary Wambui Mungai.
Photo credit: File | Nation
Interestingly, four of the 35 links Ms Mungai wants pulled from prominence in the Google index lead to stories published by the KRA.
“That following the withdrawal, there remained no criminal case, investigation, or charge against me in relation to the said allegations. Despite this, whenever my name is searched on the Google Search platform, multiple articles continue to appear among the top results suggesting or implying that I am still facing criminal prosecution for tax evasion,” Ms Mungai says in court papers.
Google Kenya Ltd, through its regional director Charles Murito, argues that it is an independent legal entity and is separate from its US-registered owners, Google LLC and Google Inc.
Mr Murito adds that the search engine is entirely owned and controlled by Google Inc, which is registered and based in Delaware, California in the US.
“From the outset, the 1st respondent (Google Kenya Ltd) does not own or operate the Google search engine, www.google.com or www.google.co.ke (the Google services)… The 1st respondent is therefore not a proper party against whom the reliefs sought may be granted, as it neither operates nor controls the Google search platform or the impugned content. Any orders granted against the 1st respondent would be inoperative,” Mr Murito says in a replying affidavit.
Ms Mungai argues that Google making the links available to users has cast doubt on her in the eyes of potential international business partners and donors who use the internet to conduct due diligence.
“My business engagements, particularly those involving foreign clients, donors, and partners, have been disrupted, as international stakeholders who carry out online due diligence encounter the outdated articles and are misled into doubting my integrity and suitability for engagement,” she said. “As a businesswoman with cross-border interests, the global reach of Google Search has magnified the harm far beyond Kenya, exposing me to prejudice and reputational injury internationally.”
Ms Mungai wants the Kiambu High Court to issue a temporary order directing the tech giant to ensure that none of the 35 stories related to the tax evasion probe or the resultant court case appear whenever someone does a Google search, pending determination of the petition.
Google headquarters in Mountain View, California.
Photo credit: File
In the substantive petition, Ms Mungai wants Google to completely hide links to stories detailing the tax evasion probe and the court case that was withdrawn three years ago.
Google Kenya Ltd insists that it was incorporated to exclusively provide sales, marketing and research and development services. The firm has attached as evidence its memorandum of association.
Google Kenya Ltd maintains that it is neither a liaison, representative nor a branch of Google LLC or Google Inc.
Ms Mungai in her petition claims that Google Kenya serves as the local presence and liaison of the US-registered firms, tasked with facilitating the operations and support of the Google brand.
Google LLC, which is listed as the second respondent in the suit, has not filed a replying affidavit.
The Kiambu High Court will deliver a ruling on June 10, on whether to order Google to pull down the 35 links from the search engine pending determination of Ms Mungai’s petition.
The petitioner claims that by making those story links to internet users, the tech giant is selectively applying policies it has availed to data subjects in other jurisdictions, such as the European Union.
She adds that the presence of the links on Google search also violates section 25(a), (b) and (c) of Kenya’s Data Protection Act. That section of law provides that personal data be processed in full, fairly, lawfully and with consideration of the subject’s right to privacy.
“That the continued presence and circulation of this outdated information has inflicted irreparable harm upon my reputation, dignity, and credibility, in violation of my constitutionally protected rights under Articles 28 which guarantees inherent dignity, 31(c) on protection of private affairs, and 33(3) guaranteeing protection of reputation as a limitation on freedom of expression. Moreover, it has disrupted my business and professional relationships, undermining the trust and confidence essential to my lawful engagements,” Ms Mungai holds.
