Reference:  NIQB 81
Court: High Court – Northern Ireland
Judge: Stephens J
Date of judgment: 7 Sep 2017
Summary: Data Protection | Privacy
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Appearances: Jonathan Scherbel-Ball (Defendant)
Instructing Solicitors: Pinsent Masons
While aged under 18, the Plaintiff had committed an offence relating to the sending of sexualised text messages to others at school. His conviction for this offence was spent, but had not been reported due to the automatic reporting restrictions which applied at the time. However, he had also committed further similar offences while under 18 but had been convicted of those offences when he was an adult. There were therefore no reporting restrictions in place in respect of those later offences, and they had been reported in the local media. Reports of these convictions, and subsequent breaches of a Sexual Offences Prevention Order (“SOPO”) which had been imposed, appeared in Google search results. The Plaintiff’s subsequent reoffending as an adult had extended the rehabilitation period of most of the earlier offences which he had committed as a minor; these were consequently not spent and would not be spent for some time.
The Plaintiff had asked Google Inc. to delist 12 URLS which appeared in Google search results of his name and which related to the unspent criminal offences he had committed while a minor. Google Inc. had declined his request to remove these results.
Accordingly, and following the decision of the CJEU in Google Spain SL v Agencia Espanola de Proteccion de Datos  QB 1022, the Plaintiff applied for permission to serve a claim out of the jurisdiction on Google Inc. in the USA. He sought permission on the basis that (a) his claim was founded on a tort (namely, misuse of private information, breach of confidence and breach of the DPA) and damages were sustained or resulted from an act committed within the jurisdiction, and / or (b) that an injunction was sought to prevent the defendants from processing his personal data in respect of these search results.
Google Inc. opposed the application on the basis that the Plaintiff had not established an arguable case and/or that there was no serious issue to be tried.
Breach of Confidence
There was no serious issue to be tried in relation to the Plaintiff’s claim for breach of confidence. Previous convictions, even if spent, could not amount to confidential information – L v Law Society  EWCA Civ 811 at paragraphs - (at ).
Misuse of Private Information
The claim for misuse of private information centred on the details of the Plaintiff’s childhood offences and his subsequent change of name. However, all of the convictions referred to in the URLs which appeared in Google search results were unspent (at ). Relying on the decision of the Supreme Court in R (T) v Chief Constable of Greater Manchester Police  AC 49, the Court acknowledged that when a conviction became spent under the Rehabilitation of Offenders Act was “usually” the point at which it might recede into the past and become part of a person’s private life. However it acknowledged that “usually” permitted “facts and circumstances which may take the case out of the usual either one way or the other” (at ).
The Court explained that the reason why the convictions were not spent was because the Plaintiff had continued to commit further offences, which had extended the rehabilitation period of the original offences that the Plaintiff sought to delist. There were no circumstances which took this case out of the usual. There was a clear public interest in disclosure in light of the Plaintiff’s involvement with a children’s charity and because the Plaintiff’s breaches of the SOPO had been raised in the Northern Ireland Assembly (at ).
Further, there was no arguable case as to an expectation of privacy in relation to the name change. The “simple and usual consequence of committing offences that the offender’s name will be public and an offender cannot avoid this by the device of changing his name” (at ). Accordingly, there was no serious issue to be tried on the claim under this tort.
The Court emphasised that the purpose of the Data Protection Directive and the Data Protection Act was to safeguard privacy rights in the context of data management (at -). Therefore, it would be surprising if the result as to whether there was a serious issue to be tried would be different under the DPA than under the tort of misuse of private information, in circumstances where the Plaintiff’s privacy rights under Art.8 ECHR were not engaged (at , ).
It was accepted that the information relating to the Plaintiff’s unspent criminal convictions comprised his sensitive personal data. However, the Court found that there was no triable issue in relation to whether Google Inc. had breached the DPA because:
In respect of the first data protection principle, Google Inc. could rely on Condition 6 of Schedule 2 of the DPA. There was no suggestion that the processing was not for its legitimate interest. The issue was whether the processing was “unwarranted” by reason of prejudice to the Plaintiff’s rights and freedoms or legitimate interests. The Plaintiff’s privacy right under Art.8 ECHR was not engaged in relation to unspent convictions, but there was a clear public interest in open justice and a clear right to freedom of expression (at ). The fact that the processing was not unwarranted also meant that there was no triable issue as to the Plaintiff’s entitlement to rely on his s.10 DPA notice and therefore no breach of the sixth principle (at  – ).
Moreover, in complying with the first data protection principle, Google Inc. could also rely on Condition 5 of Schedule 3 of the DPA. Citing the decision in Re Trinity Mirror Plc  EWCA Crim. 50, a “normal consequence” of crime was that the offender makes public information in relation to his criminal activity (at ). Therefore, as a consequence of the open justice principle the Plaintiff had deliberately taken steps to make the information public by committing the offences (at ).
There was no triable case that Google Inc. had contravened the third data protection principle. The public interests in play and the lack of any expectation of privacy meant that the processing was adequate, relevant and not excessive (at ).
As to the Plaintiff’s claim for an injunction, this was required to be part of the substantive relief to which the Plaintiff’s cause of action entitled him. The lack of a serious issue to be tried in relation to the above causes of action was determinative (at ).
The Court refused the Plaintiff’s application.
This is one of the first reported cases to be determined by the UK courts following the CJEU’s decision in Google Spain SL v Agencia Espanola de Proteccion de Datos. It therefore provides welcome guidance on how the courts will approach the issues in such cases.
The decision also illustrates the complex nature of the rehabilitation of offenders legislation and how reporting restrictions operate in respect of individuals who commit offences when they are under 18, but who are convicted when adults.
The judgment also highlights what are increasingly important issues relating to criminal convictions and open justice in the era of the internet. It is one of the first cases to consider these issues from the perspective of media reporting of criminal offences and the public interest in making those reports available online.