You will likely have heard of the so-called right to be forgotten whereby individuals can seek to have links to webpages removed from internet search engine results when searches are carried out on their names. The so-called right came about following the decision of the Court of Justice for the European Union (CJEU) in the 2014 Google Spain case. That decision confirmed that grounds for removal include cases where search results ‘appear to be inadequate, irrelevant or no longer relevant or excessive in the light of the time that had elapsed’.
The CJEU did not actually grant a specific right to be forgotten; rather the right to seek removal derives from the Article 7 of the European Convention on Human Rights (ECHR) (respect for private and family life) and Article 8 ECHR (protection of personal data). Search engine providers are entitled reject applications if they consider that the public interest in accessing the information outweighs a right to privacy.
In April 2018, the trials of the first English right to be forgotten cases concluded in the High Court. The claims had been brought by two individuals against Google LLC for misuse of private information and breach of the Data Protection Act 1988. Whilst the trials were held in public, the claimants were granted anonymity and referred to only as NT1 and NT2. The reporting restrictions continued even after the conclusion of the trials and it may be that any future cases will be dealt with in the same way, so as to provide claimants with the requisite anonymity.
NT1 had been convicted of conspiracy to account falsely in the late 1990s and had been jailed for four years. NT2 had been convicted more than ten years ago of conspiracy to intercept communications and had been jailed for six months. Both of the claimants had requested that Google remove search results that made mention to the cases for which they were convicted, including links to web pages published by a national newspaper and other media outlets. Google refused and so the claimants commenced proceedings to force Google to remove the links.
The case was heard by Mr Justice Warby, with Google arguing that the right to be forgotten ruling was ‘not a right to rewrite history or ... tailor your past if that’s what this claimant would like to use it for’. However, at the end of the trial in relation to NT2, the judge made a delisting order in favour of NT2, but he refused to order any payment of damages. The judge explained that his decision was on the basis that NT2 had shown remorse for his actions and also stated that ‘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’ and 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’.
In contrast to this, the judge said of NT1 that since leaving prison ‘He has not accepted his guilt, has misled the public and this court, and shows no remorse over any of these matters’ and ‘He remains in business, and the information serves the purpose of minimising the risk that he will continue to mislead, as he has in the past. Delisting would not erase the information from the record altogether, but it would make it much harder to find’. Accordingly, the judge rejected NT1’s claim but did grant him permission to appeal.
The decision will likely be welcomed by individuals who are seeking to have details about past convictions or embarrassing stories about them erased, however, it is clear that the courts will consider the conduct of any claimant and whether the information is truly irrelevant or whether it is in the public interest for information to remain freely accessible.
It is likely that the decision will result in further claims of this nature being brought, as the judge recognised by stating ‘It is quite likely that there will be more claims of this kind, and the fact that NT2 has succeeded is likely to reinforce that’.