A businessman has won his legal action to remove search results about a criminal conviction in a landmark “right to be forgotten” case that could have wide-ranging repercussions. The ruling was made by Mr Justice Warby in London on Friday. The judge rejected a similar claim brought by a second businessman who was jailed for a more serious offence. The claimant who lost, referred to only as NT1 for legal reasons, was convicted of conspiracy to account falsely in the late 1990s; the claimant who won, known as NT2, was convicted more than 10 years ago of conspiracy to intercept communications. NT1 was jailed for four years, while NT2 was jailed for six months. Granting an appeal in the case of NT1, the judge added: “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.” Both men demanded that Google remove search results mentioning the cases for which they were convicted. These include links to web pages published by a national newspaper and other media. Google refused their request and the men took the company to the high court.
The decision in NT2’s favour could have implications for other convicted criminals and those who want embarrassing stories about them erased from the web. Warby ruled out any damages payment, however. Explaining his decision, the judge said NT1 continued to mislead the public, whereas NT2 had shown remorse. He also took into account the submission that NT2’s conviction did not concern actions taken by him in relation to “consumers, customers or investors,” but rather in relation to the invasion of privacy of third parties. “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 added. He said his key conclusion in relation to NT2’s claim was that “the crime and punishment information has become out of date, irrelevant and of no sufficient legitimate interest to users of Google search to justify its continued availability”.
In the case of NT1, however, the judge was scathing about the claimant’s position 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,” he said. “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.”
In 2014 the European court of justice (ECJ) ruled that “irrelevant” and outdated data should be erased on request. Since then, Google has received requests to remove at least 2.4m links from search results. Search engine firms can reject applications if they believe the public interest in accessing the information outweighs a right to privacy. At a high court hearing in February, Hugh Tomlinson QC, representing NT1, told the high court that the visibility of the articles on the search engine caused “distress and upset” to his client. Tomlinson, who is also chairman of the press regulation campaign group Hacked Off, told the court the businessman was not a public figure and now made a living from commercial lending and funding a property developer. “Before anyone meets a new person these days they Google them,” Tomlinson said. He added that many people engaged in misdeeds when they were young and if the misdeeds were constantly brought to the attention of others then they would permanently have a negative effect. NT1’s conviction was now spent, Tomlinson continued, and the law was designed to allow for the rehabilitation of offenders so they could go on to lead normal lives. But Antony White QC, representing Google, argued the ECJ’s “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.” White said the business malpractice that gave rise to NT1’s conviction was “serious and sustained”.
NT2, in a separate hearing, also argued that his conviction was legally spent and he therefore had a right to be forgotten. Google resisted taking down search results linking to articles including reports on his financial affairs, his conviction and interviews given by him several years later containing his account of the circumstances surrounding his conviction. A Google spokesperson said: “We work hard to comply with the right to be forgotten, but we take great care not to remove search results that are in the public interest and will defend the public’s right to access lawful information. We are pleased that the court recognised our efforts in this area, and we will respect the judgments they have made in this case.”
Credit: Jamie Grierson And Ben Quinn for The Guardian, 13 April 2018.