By Laura Martin
On the 13th April the High Court in England and Wales ruled on two legal actions brought against Google for failing to remove search results relating to the historical criminal convictions of two businessmen. The case of NT1 & NT2 vs Google is described as a landmark ruling being the first time that the English Courts have tested the principles of the ‘right to be forgotten’.
The decision of Justice Warby is controversial and re-ignites the debate about the purposes of the ‘right to be forgotten’. The Court of Justice of the European Union ruled in May 2014 that data appearing in online search results which were inadequate, irrelevant, excessive or outdated be subject to erasure upon request to the search engine operator. This ‘right to be forgotten’ is underpinned by our fundamental Charter rights of data protection and our human right to privacy.
The CJEU ruled that the ‘right to be forgotten’ is not absolute and can be denied when the request conflicts with other rights (like speech) and interests (accessing accurate information). There is much concern over whether the High Court struck an appropriate balance between the fundamental rights of the businessmen, the interests of Google, and the wider public interest.
Internet search engines play a key role in the dissemination of information and facilitating communication. The ability to request erasure of data can be seen as impeding the critical function of search engines whilst unduly impacting our fundamental right to freedom of expression. Despite accusations to the contrary, the ‘right to be forgotten’ does not enable individuals to “re-write history”, it only enables individual to request their data be de-listed or hidden from search engine results. The information itself remained both on the Web, in Google’s index, and is available via the many other possible searches. Google also have an economic interest in maintaining complete search engine results. If the press had discovered that a private search engine operator had removed details of criminal convictions, there would be public outcry and backlash.
The businessmen’s data protection and privacy rights were also considered. The anonymous businessmen, NT1 and NT2argued that the search results were inaccurate and outdated contrary to data protection principles and disproportionately impacting on their ability to develop personal and business relations which are protected under the fundamental right of privacy.
Public interest considerations are vital when ruling whether the ‘right to be forgotten’ should be granted. Justice Warby afforded significant deliberation to the nature and scope of the public interest in having access to search results on the criminal convictions of the businessmen. NT1 and NT2 had been convicted of criminal offences over a decade ago and their convictions had been considered as “spent” under the Rehabilitation of Offenders Act 1974.
Despite the purposes of criminal law being served, does there remain a public interest in the Google search results? Justice Warby believed so. The judge suggested that the public interest was heightened as NT1 failed to accept his guilt and show remorse in relation to his convictions. This reasoning undermines the purposes of criminal law and is unfair as both NT1 and NT2 were accepted as being rehabilitated. The existence of the search results subjected the businessmen to some form of additional punishment not prescribed by the State.
But some will point to the heinous crimes committed by individuals and argue that they deserve all forms of punishment and should not be afforded to hide their criminality. Rightly so, and the ‘right to be forgotten’ accepts that the public interest in maintaining search results fluctuates depending upon a variety of factors. The ‘right to be forgotten’ requires a case-by-case assessment of the public interest, allowing for the peculiarities and nature of crime to be considered. In this case, both businessmen had committed generally low level crime and cannot be considered as dangerous individuals. NT1 was convicted of conspiracy to account falsely whereas NT2 was convicted for conspiracy to intercept communications. The majority of requests are made in relation to low level crime committed by individuals in their youth.
Others have argued that by virtue of breaking the law, individuals should carry all the consequences of their misdeeds. Why should offenders be afforded the same rights and liberties as upstanding citizens? The reality is that criminal activity is inextricably linked with social depravation. Blanket denial of all ‘right to be forgotten’ requests of offenders, will disproportionately impact the lower class who make up the majority of requests for criminal convictions to be removed. Public policy and social justice considerations must be taken into account when individuals argue for blanket denial of this right to all offenders. Although these circumstances do not relate to NT1 and NT2 who can afford to challenge Google anonymously, denying the ‘right to be forgotten’ to all offenders who have spent their convictions will not only undermine the purposes of criminal law and affect the purposes of rehabilitation but would also disproportionately impact the poor.
NT2 won his legal action against Google with the High Court accepting that his data protection and privacy rights trumped competing interests. NT1 was denied his ‘right to be forgotten’ as his crime was regarded as “more serious” with his failure to show remorse amplified the public interest against de-linking the search results. The application of the ‘right to be forgotten’ to criminal convictions remains controversial. It requires much more than balancing freedom of expression, the right to privacy and data protection, and the public interest (which will always be difficult to identify). The case of NT1 and NT2 also engages public policy concerns and requires consideration of the underpinning purposes of criminal law when deciding whether an ex-criminal should be afforded ‘the right to be forgotten’.