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Law Column: Google loses key ‘right to be forgotten’ case

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In a case which could have wide-ranging implications for search engines, a businessman has won a legal action against Google, compelling the company to remove search results appearing about a previous criminal conviction. A second businessman was not so successful.

At matters presently stand, the press is not directly affected by the High Court’s decision, but given the way the wind is blowing when it comes to online privacy, data rights, and historic news events, the decisions should be of interest to all journalists.

It is important to remember that, as noted in a previous Law Column on this case, newspapers, unlike search engines, have the benefit of s32 of the Data Protection Act 1996, the so called ‘journalistic exemption’ for the processing and publication of journalistic material.

However, this case is relevant in understanding the Court’s approach to a high profile case which touches upon the use of individuals’ data and private information; issues which have been placed into the spotlight for many companies with the implementation of the General Data Protection Regulation (GDPR).  And arguably, it throws light on the complex relationship between historic reports of criminal convictions, the public interest, and the Rehabilitation of Offenders Act.

The decision clarifies to some extent the circumstances in which search engines must delist certain historic convictions on request, for example (as seen in this case), where the nature of the conviction includes dishonesty and a risk of reoffending.

The case was brought by a businessman known only as NT2, who had been convicted over ten years ago of conspiracy to intercept communications and sentenced to six months’ imprisonment. He subsequently requested that Google remove search results mentioning the conviction; a request which Google refused, prompting the businessman to bring proceedings under data protection and misuse of private information.

In finding for the businessman, the judge’s key conclusion was that “the crime and punishment information has become out of date, irrelevant and of no sufficient legitimate interest to users of Google search to justify its continued availability”. He added, “there is not [a] plausible suggestion … that there is a risk that this wrongdoing will be repeated by the claimant. The information is of scant if any apparent relevance to any business activities that he seems likely to engage in”.

The judge ordered the delisting of the search results, but rejected a damages claim on the basis that Google had taken reasonable care to comply with the relevant requirements.

The verdict sharply contrasted with the judge’s decision in a parallel case concerning another businessman, referred to as NT1. He was convicted, in the late 1990s, of the more serious offence of false accounting, for which he was sentenced to four years imprisonment. Rejecting the claim, the judge indicated that, in contrast to NT2, NT1, “has not accepted his guilt, has misled the public and this court, and shows no remorse over any of these matters”. He added that, “…the information serves the purpose of minimising the risk that he will continue to mislead, as he has in the past”.

The decision has clear implications for other individuals seeking to remove content from Google search results. The key differentiator between the two claims appears to have been the element of dishonesty in the crimes and the perceived risk of reoffending, as well as the conduct and business activities of the two businessmen since their convictions. In the case of NT1, this, the judge said, made the historic information more relevant to the public. The court also noted that the information complained of by NT1 related to his business life, rather than his personal life, implying that a different approach might be taken in relation to more private information.

And it this distinction that journalists will want to consider when deciding whether there is a public interest when it comes to reporting historic convictions.

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  • April 24, 2018 at 9:41 am
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    The Rehab act often seems to forgotten when the media reports previous convictions that are spent.

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