First “right to be forgotten” case reaches trial

NT1 v Google LLC begins 27 February

The first English “right to be forgotten” case against Google LLC (the US corporation), brought in relation to links maintained by the Google search engine, begins in the High Court before Mr Justice Warby on Tuesday 27 February 2018. It follows the 2014 Judgment of the Court of Justice of the European Union in Google Spain SL v Agencia Española de Protección de Datos, Case C-131/12.

The Claimant, who has been granted anonymity and is referred to as “NT1”, seeks compensation against Google and an order requiring Google to de-list its search engine links to certain Internet content. Principally the content concerns NT1’s conviction in the 1990s for which NT1 served a prison sentence. The conviction has been spent under the Rehabilitation of Offenders Act 1974 for a considerable period of time. The Court has already given two Judgments in the case, here and here, concerning the reporting restrictions under section 11 of the Contempt of Court Act 1981 necessary for the trial.

The case will bring to the fore a number of important controversies, including the operation of the Data Protection Act 1998 and the E-Commerce Regulations 2002 and their applicability (if any), the relevance of the tort of misuse of private information, the apparent tension between the policy of rehabilitation on the one hand and the unchecked availability of historic information through Google searching on the other, and Google’s claim to benefit as a data controller from the journalistic exemption under s 32 of the 1998 Act.

An additional twist is that the UK Information Commissioner’s Office has intervened in the proceedings, to make submissions from its perspective as to amongst other things the interpretation of the 1998 Act.

A second case for an unrelated individual, that of NT2 against Google LLC, will follow, to commence on Monday 12 March 2018.

Jonathan Barnes of 5RB has been acting for NT1 and NT2 from the outset, since 2015, instructed by Carter-Ruck. He is being led at trial by Hugh Tomlinson QC of Matrix. Antony White QC (Matrix) and Catrin Evans QC (1 Brick Court), instructed by Pinsent Masons, represent Google LLC. Anya Proops QC and Rupert Paines (both 11KBW) act for the Information Commissioner’s Office.