April 13, 2018
Trial establishes English “right to be forgotten”
High Court makes first de-listing order against Google LLC
The first English “right to be forgotten” trial against Google LLC, the US corporation, has resulted in a de-listing order made in favour of NT2, one of the two anonymous claimants. The claim brought by the other claimant NT1 was dismissed although NT1 was given permission to appeal. Both cases turned upon Mr Justice Warby’s analysis of links returned by Google searches made against the claimants’ names with reference to English data protection, privacy and rehabilitation of offences law and 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.
Both claimants had business-related criminal convictions from many years ago that are each now spent under the UK Rehabilitation of Offenders Act 1974. The Judge considered that factors specific to NT1 meant that information about NT1’s conviction should remain searchable against NT1’s name on Google. However the Judge found that NT2 is entitled to have all links to NT2’s offending returned by a Google search against NT2’s name de-listed. That is because the information about NT2’s historic crime and punishment has become out of date, irrelevant and of no sufficient legitimate interest to users of Google Search to justify its continued availability. In particular, the Judge held: NT2 has acknowledged guilt for the offending and expressed genuine remorse; there is no evidence of any risk of repetition; NT2’s current business activities are in a field quite different from that in which NT2 previously operated; the past offending is of little if any relevance to anybody’s assessment of NT2’s suitability to engage in relevant business activity now or in the future; there is no real need for anyone now to be warned about NT2’s previous activity. Further, in relation to one item of content being linked to by Google Search the Judge found with reference to the Data Protection Act 1998’s Fourth Data Protection Principle that Google would be processing sensitive personal data that was inaccurate if the content was not de-listed.
In coming to these conclusions the Judge considered that one necessary condition for the fair and lawful processing of the claimants’ sensitive personal data under the 1998 Act was in each case satisfied namely that by their offending each claimant had taken steps deliberately which resulted in information about their offending being made public. However the Judge rejected the balance of Google’s arguments seeking to exempt itself: it failed to show that either claim was an abuse of the Court’s process; Search is not protected by the s32 exemption of the 1998 Act concerning the “special purposes” of journalism, literature and art; the processing of personal data by Search was not “necessary for the purposes of exercising legal rights” or the processing of information “disclosed by an anti-fraud organisation”; nor is Google Search protected by the Data Protection (Processing of Sensitive Personal Data) Order 2000 (SI 2000/417). During the trial Google also withdrew its contention that its Search activities were “caching” and so protected by the E-Commerce Directive 2000/31/EC and the related E-Commerce Regulations.
In the Judge’s final analysis the question overall whether Google’s processing was in compliance with the 1998 Act was subsumed in the balancing exercise required by an application of the Google Spain decision. That in turn led the Judge to apply the 13 criteria drawn up in the wake of Google Spain by the Article 29 (of EC Directive 95/46/EC) Working Party. In NT2’s case the criteria of most relevance were: NT2’s limited public role; the lack of relevance of the offending to anything today; the sensitivity of the information concerning as it did a conviction; the “prejudice” or harm experienced by NT2 in private and family life; and the policy of rehabilitating previous offending.
Both claims were brought under the Data Protection Act 1998 and for misuse of private information. Although the Judge considered both causes of action separately in each case the outcomes in relation to each cause of action essentially matched each other.
In a notable innovation the trials were held entirely in public but subject to reporting restrictions orders prohibiting the identification of either claimant who had each been granted anonymity when proceedings were issued. The Judge continued the reporting restrictions orders after Judgment regardless of outcome in either case so that the court process itself does not give the information at issue the very publicity which the claimants sought to limit.
It is therefore reasonable to anticipate that any future “right to be forgotten” claims may be brought on similar terms as to permanent claimant anonymity.
Jonathan Barnes of 5RB acted for NT1 and NT2 from the outset instructed by Carter-Ruck. He was led at trial by Hugh Tomlinson QC of Matrix.