We all understand that there are bounds to this notion, so if you’ve been convicted of murder or rape, you’re unlikely to be able to erase your record. However, for relatively minor offences or offences that occurred so long ago that they are no longer relevant, you could hope to be able to move on.

Moving on was conceivable before the internet age; local news was quickly forgotten, or people could move away and start over. The scenario is different now, with the advent of online news and the capacity of virtually anyone to post almost anything. Google and other powerful search engines assure that if the information is out there, it can be found.

As a result, individuals increasingly talk about a ‘right to be forgotten,’ and here is where data protection regulations come into play.

This ‘right to be forgotten’ is not a novel concept in data privacy legislation. With the Rehabilitation of Offenders Act 1974, the UK Parliament recognised the notion a long time ago. That Act states that a person’s previous convictions are considered “spent” after a defined amount of time (which varies depending on the sentence imposed). The basic argument is that, with the exception of the most egregious offences, people should not have a “blot” on their record for the rest of their lives, but should be able to live without it and the effects it may have on their work or other aspects of their lives. So, long before data protection rules were enacted, the notion of a “right to be forgotten” was recognised in domestic law. Its appearance in the sphere of data protection simply reflects the Internet’s tremendous advancement in the distribution of information.

What does the law say?

The European Court of Justice has jurisdiction over concerns emerging from data protection proceedings as a result of the EU’s standardisation of data protection rules. Courts in EU member states have the authority to refer cases to the ECJ for interpretation of the law. Google Spain SL v. Agencia Espanol de Proteccion de Datos (AEPD) (Case C-131/12, 13 May 2014) is one such case.

[2014] QB 1022 – has gained a lot of attention and has sparked a lot of debate. The lawsuit is commonly referred to as the Google Spain case. It was this case that first brought the concept of a “right to be forgotten” to the fore. Simply put, the case determined that, after a period of time, certain information about a person (which may have been accurate many years ago and may continue to be so) should not be made available to the public in Internet search results because doing so would violate the individual’s data protection rights. There was no such thing as an absolute right. It’s possible that other factors will outweigh it. The Court went on to say:

“It must be pointed out at the outset that….processing of personal data, such as that at issue in the main proceedings, carried out by the operator of a search engine is liable to affect significantly the fundamental rights to privacy and to the protection of personal data when the search by means of that engine is carried out on the basis of an individual’s name, since that processing enables any internet user to obtain through the list of results a structured overview of the information relating to that individual that can be found on the internet — information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty — and thereby to establish a more or less detailed profile of him. Furthermore, the effect of the interference with those rights of the data subject is heightened on account of the important role played by the internet and search engines in modern society, which render the information contained in such a list of results ubiquitous.

In the light of the potential seriousness of that interference, it is clear that it cannot be justified by merely the economic interest which the operator of such an engine has in that processing. However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, in situations such as that at issue in the main proceedings a fair balance should be sought in particular between that interest and the data subject’s fundamental rights… Whilst it is true that the data subject’s rights protected by those articles also override, as a general rule, that interest of internet users, that balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.”

This principle has a significant impact on public opinion. Concerns have been voiced that the right to be forgotten could be abused, resulting in the censoring of publicly available information on the Internet. Criminal trials are almost always held in public. Information on people who have been convicted of criminal offences may find up on the ‘public record,’ most commonly as a result of newspaper coverage of court cases. Those who oppose the “right to be forgotten” argue that constraints on what can show in the results of Internet search engines should not prevent access to this type of information.

Another area of the law where two human rights clash is the right to be forgotten, which is a component of the right to privacy and conflicts with the right to freedom of expression (which includes the right to receive as well as to impart information). When such disagreements develop, it is ultimately up to the Court to decide where the balance should be struck in each case.

What about the UK courts?

The High Court is soon to decide this issue so far as the UK is concerned.

The Claimants in two cases before the Court (to be heard in February and March 2018) are both individuals (neither is a ‘celebrity’ or politician) who have previously been convicted of criminal offences, but both have now been “rehabilitated” under the Rehabilitation of Offenders Act 1974. One was convicted in the late 90s of conspiracy to account falsely. Over ten years ago, the other was convicted of conspiracy to intercept communications. Both complain in their respective claims that Google is continuing to return, in response to searches of their names, links to information about their respective convictions. Some of the links that are complained about are links to newspaper articles reporting the original criminal proceedings. The Claimants argue that the time has come for them to be entitled to have these entries removed from searches carried out on Google.

What is the High Court likely to say on this issue?

We just do not know, although most commentators believe that past EU decisions will be implemented. But, either way the case goes, it will very certainly end up in front of the Supreme Court, so it could be a year or more before we get any answers.