News: High Court orders “delisting” by Google in “right to be forgotten” case

13 04 2018

In a judgment handed down at the High Court today, Mr Justice Warby has ordered Google LLC to delist eleven URLs referring to a spent conviction of a businessman known as NT2. The claim brought by the other claimant, NT1.  A joint public judgment was given in both cases ([2018] EWHC 799 (QB)).

The Court gave judgment after the trial of two claims based on the “right to be forgotten” or, more accurately, the right to have personal information “delisted” or “deindexed” by the operators of internet search engines (“ISEs”).

The claims were made under data protection law and the English law tort of misuse of private information.

The claimants were two businessmen who were convicted of criminal offences many years ago. They complain of search results returned by Google’s ISE, “Search”, that feature links to third-party reports about the their ’ convictions which they say are inaccurate and/or old, irrelevant and of no public interest, or otherwise an illegitimate
interference with their rights.

The Judge held that Google could not rely on the so-called “journalism exemption” in s 32 of the DPA. It had not processed these data for journalistic purposes, or alternatively not only for those purposes. Moreover, it has not adduced any evidence that it held a belief that
compliance with the provision of the DPA, from which it seeks exemption, would be incompatible with such a purpose [95]-[102].

The balancing process which Google Spain requires had to be carried out with reference to guideline criteria established by the Article 29 Working Party.

In relation to NT2 the Court pointed out that the conviction was not one involving dishonesty, and it was based on a plea of guilty. The Court concluded

The crime and punishment information has become out of date, irrelevant and of no sufficient legitimate interest to users of Google Search to justify its continued availability, so that an appropriate delisting order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” [223].

However, no award of damages was made.

In relation to NT1 the Court concluded

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” [223].

As a result, NT1’s claim was dismissed.  The Judge, however, granted NT1 permission to appeal.

Both trials were held entirely in public subject to reporting restrictions prohibiting the identification of either claimant.  These reporting restrictions were continued after judgment so that the court process itself did not give the information the publicity which the claimants sought to limit.

A summary of the judgment [pdf] is available on the Judiciary website.

There are a number of press reports of the judgment including:

 

 


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2 responses

16 04 2018
Law and Media Round Up – 16 April 2018 | Inforrm's Blog

[…] the Register – from the only reporter to provide full coverage of the trial.  There was also an Inforrm news item and one on the 5RB website.  We will have a case comment […]

28 06 2018
Weekly Notes: legal news from ICLR – 16 April 2018 – ICLR

[…] There is an early case comment on Inforrm’s blog: High Court orders “delisting” by Google in “right to be forgotten” case […]

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