The ‘Right to Be Forgotten’ – An Unsatisfactory Score Draw

The High Court has given judgment in the first of what are referred to as ‘right to be forgotten’ cases.

Two applicants referred to in the judgment as NT1 and NT2 had been convicted in the past of a criminal offence. In both cases, the convictions were rehabilitated so far as the Rehabilitation of Offenders Act is concerned, yet details of that offending appear when a google (or other) search is undertaken.

Both applicants wished for Google to de-list the articles, so that on any search they would not appear. The court, therefore, had to grapple with the competing interests of the men who said the information ‘…is not just old, but out of date, and irrelevant, of no public interest, and/or otherwise an illegitimate interference with their rights’, and google which argued that the listing of the information was lawful.

What had the men done?

The essential facts of NT1’s case are that in the late 1980s and early 1990s, when he was in his thirties, he was involved with a controversial property business that dealt with members of the public. In the late 1990s, when he was in his forties, he was convicted after a trial of a criminal conspiracy connected with those business activities and sentenced to a term of imprisonment. He was accused of but, never tried for, a separate conspiracy connected with the same business, of which some of its former staff were convicted. There was media reporting of these and related matters at that time. Links to that reporting were made available by Google Search, as were other links, including some to information on a parliamentary website. NT1 was released on licence after serving half his sentence in custody. The sentence came to an end in the early 21st century. Some years later it became a “spent” conviction. The reports remained online, and links continued to be returned by Google Search. In due course, NT1 asked Google to remove such links.

The facts of NT2’s case are quite separate from those of NT1. The only connections between the two cases are that their factual contours have some similarities, they raise similar issues of principle, and they have been tried one after the other with the same representation. In the early 21st century, when he was in his forties, NT2 was involved in a controversial business that was the subject of public opposition over its environmental practices. Rather more than ten years ago he pleaded guilty to two counts of conspiracy in connection with that business and received a short custodial sentence. The conviction and sentence were the subject of reports in the national and local media at the time. NT2 served some six weeks in custody before being released on licence. The sentence came to an end over ten years ago. The conviction became “spent” several years ago. The original reports remained online, and links continued to be returned by Google Search. NT2’s conviction and sentence have also been mentioned in some more recent publications about other matters, two of them being reports of interviews given by NT2. In due course, NT2 asked Google to remove such links.

What did the court decide?

NT1 lost his case, and the listings will remain 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?

A little!

What is clear is that there is no ‘magic bullet’ to delisting, each case will have to be considered on its own facts, and therefore a great many people may still need to take court action to try and erase their past activities 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 would appear that NT2’s general attitude and remorse may have been a critical consideration. Therefore, it will not only be the facts of the conviction that are relevant, but the applicant’s behaviour since, and his or her current business or other activities.

How we can assist

At the present time we would advise that the outcome of any appeals is known until anyone considers court action in relation to search engine listings. It is quite possible that this issue will ultimately be decided by the Supreme Court, and if that happens it will be at least a year before that happens.

If you have any concerns or simply to discuss any aspect of your case, please contact any member of the criminal defence department on 0117 902 8003 or 0117 967 9800 or by email to info@danielwoodman.co.uk