Landmark Google case opens way to deleting history
●Criminals can claim right to be forgotten after milestone ruling
A legal victory won against Google over the “right to be forgotten” is forecast to have major implications for primary online publishers.
British law firm Carter-ruck represented two businessman convicted of criminal offences many years ago who argued their convictions were now legally “spent” and they had been rehabilitated.
Lawyers said the claims were “ground-breaking” and “unprecedented”.
Mr Justice Warby yesterday ruled in favour of one of the men, identified only as NT2, in a High Court hearing in London. The man had been sentenced to six months’ imprisonment for “conspiracy to carry out surveillance”.
Justice Warby said an “appropriate delisting order” would be made in the case, which related to complaints about 11 “source publications”, but ruled out any compensation.
The judge rejected the claim brought by the other man, NT1, who complained about three links returned by Google providing information about his conviction for “conspiracy to account falsely” for which he received a sentence of four years. Permission to appeal was granted in his case.
Google contested both
claims, which were brought under data protection law and misuse of private information.
The men complained of results returned by Google Search that featured links to third-party reports about their convictions.
The judge said their claims were based on the “right to be forgotten” or “more accurately” the right to have personal information delisted or de-indexed. The businessmen were not named publicly, he added, “to avoid the claims being self-defeating or leading to additional publicity for the information in question”.
Carter-ruck said the judgment had “important implications for primary online publishers”. The firm had there were “wide-ranging and general implications for take-down requests and subsequent action in relation to inaccurate personal data and references to spent convictions on the internet”.
The judge said the delisting claims were not an abuse of process as Google alleged.
In NT2’S case, the “crime and punishment information” had become “out of date, irrelevant and of no sufficient legitimate interest to users of Google Search to justify its continued availability”.
NT2 had acknowledged his guilt and expressed genuine remorse. There was no evidence of any risk of repetition.
Rejecting NT1’S claim, the judge said the crime and punishment information “retains sufficient relevance today”. He said NT1 “has not accepted his guilt, has misled the public and this court and shows no remorse over any of these matters. 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”.
In 2014 the European Court of Justice ruled “irrelevant” and outdated data should be erased on request. Since then, Google has received requests to remove at least 2.4 million links from search results.
Google co-founder Larry Page previously warned the EU’S “right to be forgotten” ruling risked empowering repressive governments and their control of the internet.
Ben Rose, partner at human rights and criminal law firm Hickman & Rose, said: “There is an inherent tension between an individual’s right to privacy and what information the public interest requires be available. One of the many arenas in which this issue plays out is in access to information about someone’s previous criminal convictions.
“The Rehabilitation of Offenders Act 1974 sought to strike a balance on this thorny topic. That held good until the internet and Google’s powerful search engine rather undid matters. The right to be forgotten litigation requires the courts to once again consider where that balance lies, a question which has implications for us all.”
Last night 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.”
There is much debate right now about how the internet has eroded our privacy. It is certainly true that our personal information is at risk of being shared or sold without our knowledge but it is also the case that most of this personal information is provided willingly by users of social media.
In some cases, however, those whose information is available online are desperate for this not to be so. A number of individuals convicted of crimes have launched legal actions against search engine Google, arguing that they have a right for their misdeeds to be forgotten.
It is certainly the case that the internet means a person’s history can be researched at the click of a button, a marked change from the past when a criminal record could be easily concealed and eventually forgotten. But while we might feel some sympathy for those who have paid their debt to society and wish now to move on with productive lives, we must guard against anything that would remove matters of significant public interest.
It is clear, as is often the case in matters relating to the internet, that legislation is far from perfect.
Yesterday, one businessman fighting for the right to be forgotten over a past crime won a High Court action that means Google will now have to remove details of the case from search results. But a second businessman, convicted of a more serious crime, had a similar case dismissed.
Of course, in the days before the web, reference libraries contained -– and still contain – back issues of newspapers which detail all manner of historic crimes. Even if a conviction was spent, there was never any suggestion that the public record should be altered.
We should be wary about aggressive lawyers pushing for even greater privacy for those convicted of often very serious crimes.
It is quite right that those who have served prison sentences deserve, upon their release, to get on with their lives with their debt to society considered settled but this right must be balanced with the need for justice not only to be done but to be seen to be done.
There is a world of difference between privacy and secrecy. We should be wary about enabling the latter through unthinking support for the former. Each time someone wins a right to be forgotten case, the public’s right to know is undermined and that should concern us all.