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18 Apr 18

Google and “The Right to be Forgotten”

April 18, 2018

The High Court last week gave judgment in two cases brought against Google LLC, both seeking the removal of certain results from searches made under the claimants’ respective names. Kate Williams provides an overview of the case and considers the possible implications for regulated professionals such as doctors and dentists in the UK.

The case of NT1 and NT2 v Google LLC [2018] EWHC 799(QB) is the first case of this type to be heard in the English courts. In a lengthy and detailed judgment, WarbyJ applied all the overlapping laws (which include the Rehabilitation of Offenders Act 1974, The Defamation Act 2013, the Data Protection Act 1998, The Human Rights Act 1998, the tort of misuse of private information, the 2014 CJEU decision of Google Spain and the guidance subsequently produced by the EU Working Party) to the facts of each of the two cases, and balanced the competing demands of privacy on the one hand and freedom of expression on the other.

The facts of the two cases had broad similarities. Both claimants were businessmen with criminal convictions arising from their business activities. Both had spent time in prison, but the convictions of each had now long been “spent” under the Rehabilitation of Offenders Act. However, from there the facts were sufficiently different to produce quite different results for each claimant. The claim of NT1 failed (although he was given leave to appeal), but NT2 was granted an order requiring the offending links referring to his conviction to be removed by Google from its search results.

The factors which weighed against NT1 were the relative seriousness of his offence and the length of his prison sentence; his continuing refusal to accept his guilt; his subsequent “crude” and “misleading” attempts to re-write history via a blog and social media postings; the fact he remains in business; and the fact that he failed to satisfy the judge that the information he objected to was inaccurate, as alleged.

By contrast, NT2 had pleaded guilty to his offence (which was not one of dishonesty); his crime did not involve the pursuit of personal gain; he did not appeal against his sentence; and he acknowledged to the judge his full responsibility for what he had done. His subsequent internet profile did not make any false claims about his character and he was now in an entirely different field of business. He satisfied the judge that one of the links to which he objected was indeed inaccurate.

In his balancing exercise, the judge applied the 13 criteria identified by the European Working Party after the Google Spain decision to conclude that the data in question remained relevant to the public in the case of NT1 but not in the case of NT2.

The judgment recognises the possibility that, with the passage of time, a conviction may so recede into the past that it becomes an aspect of an individual’s private life. However, it is not yet clear whether this possibility can ever extend to members of a regulated profession such as doctors or dentists (who are excluded from the relief of the Rehabilitation of Offenders Act, so that their convictions are never “spent”). In such a case, no doubt very strong evidence will be required that the data has become irrelevant and is an unwarranted intrusion into the individual’s private life.

Kate Williams is a Consultant at Eastwoods Solicitors Ltd