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Law Column: Why the ‘right to be forgotten’ doesn’t apply to newspapers

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The right to be forgotten (or more accurately, ‘the right to delist’) is back in the spotlight again in the form of a case currently weaving its way through the High Court.  ‘ABC’, as he is known in the proceedings, is complaining that news reports listed on Google searches against his name refer to a conviction deemed to be spent under the Rehabilitation of Offenders Act 1974.

As most readers will by now be familiar, the ‘right to be forgotten’ arises from the case colloquially referred to as Google Spain, the 2014 European Court case which established that search engines must remove “irrelevant or excessive” from their lists, if requested to do so.  “Irrelevant” can be interpreted as out of date.  While the decision applies only to search engines and not to newspapers and magazines, many complainants fail to appreciate this distinction, leading to the case being wrongly cited in numerous complaints.  Many complainants also fail to appreciate that a complaint to Google (or indeed any of the other search engines) will only result in the links being delisted from search results, not to the article itself disappearing from individual websites.

Newspapers, unlike search engines, have the benefit of s32 of the Data Protection Act 1996, the so called ‘journalistic exemption’ for the publication of journalistic material. The ICO has mostly taken a broad view in defining ‘journalism’, stating in 2014 that “If something is done with the aim of disclosing information, opinion, or ideas to the public by any means, it will be for the purposes of journalism“.  Newspaper archives, including those referring to spent convictions, should therefore be protected.

There are however occasional exceptions where a story should arguably be updated for the data contained in the story to remain “accurate“, a requirement which does apply to newspapers notwithstanding the special exemption.  For example in court proceedings where an original verdict has been successfully overturned on appeal.  However genuine cases will be rare and must be looked at on a case by case basis.

That doesn’t mean that complainants and their lawyers aren’t trying to push the boundaries. In 2016 a Belgian court horrified press commentators by finding that a newspaper had been properly ordered to anonymise an archived article.  In that instance, the applicant had been convicted of a drink driving offence relating to a fatal road traffic accident, a conviction which was now spent.  However in this instance the finding was not based on data protection, but on privacy law, the court finding that the continued publication of his name was a violation of his Article 8 rights to privacy, those rights outweighing the newspapers rights under Article 10.  Specifically, twenty years after the conviction, the court believed that continued publication was likely to cause the claimant disproportionate damage compared to the strict respect for freedom of expression.

A Spanish Court found differently, finding in a 2015 case that an order requiring the removal of names from an online article concerning drug convictions should be overturned. The paper must take steps to ensure the results were removed from search engine indexes, but there was to be no “re-writing of history“.  The English courts have yet to tackle the issue.  For the time at least, newspapers can remain bullish in the face of ‘right to be forgotten’ complaints, the courts, ICO and press regulator (in the form of the PCC, predecessor to IPSO) having all recognised the need for the integrity of newspaper archives.

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