Data Protection: The Right to a Second Chance

2 06 2018

The new right to be forgotten (now known as “the right to erasure”) was enshrined in law last week, but it will pass a lot of people by. Many will not know – or care – about their online profile, but for others the right is vital to their future.

People who may have committed a crime a few years ago now find that it is the only thing they are known for. It effectively defines their life. This will have an impact on their chances of getting a job, building a business or accessing higher education. They will find it harder to get a loan, a mortgage or insurance. It will also, inevitably, have an impact on their personal well-being and social life.

It is a sobering thought that millions of individuals in the UK have had a criminal conviction at some point in their life. Home Office research has shown that nearly a third of men, and 10% of women, reaching the age of 60 have a non-motoring criminal conviction.

The Rehabilitation of Offenders Act 1974 was designed to enable some with a criminal conviction to consider their sentence spent after a certain amount of years.  The Act does not allow rehabilitation for those that commit grave offences, such as serious violence or sexual crimes. Custodial sentences over four years are never spent.  But for a vast majority, the 1974 Act was designed to allow former offenders to start afresh without having to mention a conviction when applying for jobs or other everyday things like loans or insurance. The effect of rehabilitation was as if the conviction never happened.

This worked well in the days before the internet, but more recently those with spent convictions have found that, if a future employer, insurance company or new friends searched their name on Google, any news report about their conviction was revealed, thus putting them at a continuing disadvantage despite the law.

For this reason, the cases of NT1 & NT2 v Google LLC (right to be forgotten) are important. For the first time, the Court ruled that in certain circumstances an ex-offender would be able to ask Google to delist or erase references to their conviction from the search engine. While the individual who was referred to as NT2 was granted the right to be forgotten, NT1 lost his case.

The fact that NT2 pleaded guilty to his offence, received a 6 months sentence and showed genuine remorse worked in his favour.  NT1, however, received a four year sentence (just before the cut off point for rehabilitation) and pleaded not guilty. The Court held that he showed no remorse, and the judge took a dim view of his character.  Google has accepted the NT1 judgment, but NT2 is appealing the verdict.

So, will law firms see a sudden influx of ex-offenders seeking the right to be forgotten?  Perhaps.  This may well be the best route for some, but many are fearful of taking on lawyers because it’s usually a very expensive business. Just the preliminary steps – contacting Google and the Information Commissioner – can cost several thousand pounds. If the claim goes to court, there are court fees, disbursements and After the Event (ATE) insurance costs even if the claimant has a Conditional Fee Agreement (CFA).

Other potential claimants and criminal lawyers are turning to alternative service providers to contact Google and other search engines and, if necessary, the ICO. There are low overheads for this kind of service and so they are able to offer much lower set fees that include expenses.

For anyone who cares about their online reputation – especially those with spent convictions – the right to be forgotten is good news. And, some might say, it’s about time too. Punishment was never meant to be never-ending or disproportionate. The effect of the judgments and the right to be forgotten will be to reinstate the effect of the old law, and update it for the internet age.

This post originally appeared on the My Clean Slate website and is reproduced with permission and thanks


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