The ‘Right to Be Forgotten’

The first of the so-called “right to be forgotten” cases has been decided by the High Court.

Two of the applicants, referred to as NT1 and NT2, had previously been convicted of a criminal offence. Although the convictions were rehabilitated under the Rehabilitation of Offenders Act in both cases, details of the crimes surface when a google (or other) search is conducted.

Both petitioners requested that Google remove the articles from its index, so that they would not display in any searches. The court had to balance the contrasting interests of the men, who said the information was “not just old, but out of date, and irrelevant, of no public interest, and/or otherwise an illegitimate interference with their rights’,” and Google, which claimed the listing was legal.

What had the men done?

The basic elements of NT1’s case are that he was connected with a contentious property firm that dealt with members of the public in the late 1980s and early 1990s, when he was in his thirties. He was convicted of a criminal conspiracy relating to those business activities and sentenced to prison in the late 1990s, when he was in his forties, after a trial. He was charged with, but never tried for, a separate conspiracy involving the same company, for which several of its former employees were found guilty. At the time, there was media coverage of these and related issues. Google Search provided links to that reporting, as well as other links, including some to material on a parliamentary website. After serving half of his time in custody, NT1 was released on probation. In the early twenty-first century, the sentence came to an end. It became a “spent” conviction after a few years. The reports remained online, and Google Search continued to return links. NT1 eventually asked Google to remove the links.

The circumstances of NT2’s case are distinct from those of NT1. The sole parallels between the two instances are their factual contours, the factual concerns they raise, and the fact that they were tried one after the other with the same representation. NT2 was involved with a problematic corporation that was the focus of public protest over its environmental policies in the early twenty-first century, when he was in his forties. He pleaded guilty to two counts of conspiracy in connection with the firm more than ten years ago and received a brief prison sentence. At the time, the conviction and sentencing were the topic of national and local media reports. NT2 was held in detention for six weeks before being released on bail. Over ten years ago, the sentence came to an end. Several years ago, the conviction was declared “spent.” The original reports remained online, and Google Search continued to return links. The conviction and punishment of NT2 have also been addressed in some more recent publications regarding different subjects, two of which are accounts of NT2’s interviews. NT2 eventually asked Google to remove the links.

What did the court decide?

NT1 lost his case, and the listings will remain in place for the time-being, although there is expected to be an appeal.

NT2 won his case, and the court made an order that Google delist the information from its searches. The court declined to award compensation or damages. It is not clear yet whether Google will seek to appeal.

Is the law clearer now?

Somewhat!

What is evident is that there is no ‘magic bullet’ when it comes to delisting; each case must be evaluated on its own facts, and as a result, many people may still need to go to court to have their prior behaviour removed from Google and other search engines.

In NT2’s case the Judge stated:

‘My key conclusions in respect of NT2’s delisting claim are that the crime and punishment information has become out of date, irrelevant and of no sufficient legitimate interest to users of Google Search to justify its continued availability, so that an appropriate delisting order should be made. The conviction was always going to become spent, and it did so in March 2014, though it would have done so in July of that year anyway. NT2 has frankly acknowledged his guilt and expressed genuine remorse. There is no evidence of any risk of repetition. His current business activities are in a field quite different from that in which he was operating at the time. His past offending is of little if any relevance to anybody’s assessment of his suitability to engage in relevant business activity now, or in the future. There is no real need for anybody to be warned about that activity.’

Whereas, in relation to NT1 the Judge held:

‘The key conclusions I have drawn are these. Around the turn of the century, NT1 was a public figure with a limited role in public life. His role has changed such that he now plays only a limited role in public life, as a businessman not dealing with consumers. That said, he still plays such a role. The crime and punishment information is not information of a private nature. It was information about business crime, its prosecution, and its punishment. It was and is essentially public in its character. NT1 did not enjoy any reasonable expectation of privacy in respect of the information at the time of his prosecution, conviction and sentence. My conclusion is that he is not entitled to have it delisted now. It has not been shown to be inaccurate in any material way. It relates to his business life, not his personal life. It is sensitive information, and he has identified some legitimate grounds for delisting it. But he has failed to produce any compelling evidence in support of those grounds. Much of the harm complained of is business-related, and some of it pre-dates the time when he can legitimately complain of Google’s processing of the information. His Article 8 private life rights are now engaged, but do not attract any great weight. The information originally appeared in the context of crime and court reporting in the national media, which was a natural and foreseeable result of the claimant’s own criminal behaviour. The information is historic, and the domestic law of rehabilitation is engaged. But that is only so at the margins. The sentence on this claimant was of such a length that at the time he had no reasonable expectation that his conviction would ever be spent. The law has changed, but if the sentence had been any longer, the conviction would still not be spent. It would have been longer but for personal mitigation that has no bearing on culpability. His business career since leaving prison made the information relevant in the past to the assessment of his honesty by members of the public. The information retains sufficient relevance today. He has not accepted his guilt, has misled the public and this Court, and shows no remorse over any of these matters. He remains in business, and the information serves the purpose of minimising the risk that he will continue to mislead, as he has in the past. Delisting would not erase the information from the record altogether, but it would make it much harder to find. The case for delisting is not made out.’

It appears that NT2’s general demeanour and regret were important factors to consider. As a result, not only the circumstances of the conviction will be significant, but also the applicant’s subsequent behaviour and present business or other activities.