Future risk relevant to putting the past behind
Justice Warby of the High Court of Justice, Queen’s Bench Division, handed down a landmark judgment for England and Wales on the “right to be forgotten” with his decision in NTI and NT2 v Google Inc. The two plaintiffs, anonymised as NT1 and NT2 for obvious reasons, were both businessmen who had been convicted of criminal offences and sentenced to terms of imprisonment in connection with their business activities. In both cases those sentences had been served long enough ago that the convictions were “spent”, which under the 1974 Rehabilitation of Offenders Act meant that the person was “entitled to be treated for all purposes as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of” the conviction. Both sought to require Google to delist results showing reports of those criminal convictions from searches associated with their names. NT1 failed in that claim while NT2 succeeded: in essence, the judge concluded that there were legitimate reasons to keep NT1’s disreputable past alive, but that those reasons did not exist for NT2.
The judge noted that many authorities were relevant to his decision, including the Rehabilitation of Offenders Act, the Data Protection Act, the Human Rights Act, and the decision in Google Spain SL & another v Agencia Espanola de Proteccion de Datos (AEPD) and another Case. Ultimately, however, the decision was primarily guided by a European Union Working Party on the Protection of Individuals with regard to the Processing of Personal Data, and the Guidelines on the Implementation of Google Spain which it had created. The judge noted the overall approach adopted in those Guidelines:
37 The Executive Summary helpfully identifies four salient features of the Google Spain decision:
1. Search engines as data controllers
The ruling recognises that search engine operators process personal data and qualify as data controllers within the meaning of Article 2 of Directive 95/46/EC. The processing of personal data carried out in the context of the activity of the search engine must be distinguished from, and is additional to that carried out by publishers of third-party websites.
2. A fair balance between fundamental rights and interests
In the terms of the Court, "in the light of the potential seriousness of the impact of this processing on the fundamental rights to privacy and data protection, the rights of the data subject prevail, as a general rule, over the economic interest of the search engine and that of internet users to have access to the personal information through the search engine". However, a balance of the relevant rights and interests has to be made and the outcome may depend on the nature and sensitivity of the processed data and on the interest of the public in having access to that particular information. The interest of the public will be significantly greater if the data subject plays a role in public life.
3. Limited impact of de-listing on the access to information
In practice, the impact of the de-listing on individuals' rights to freedom of expression and access to information will prove to be very limited. When assessing the relevant circumstances, DPAs will systematically take into account the interest of the public in having access to the information. If the interest of the public overrides the rights of the data subject, de-listing will not be appropriate.
4. No information is deleted from the original source
The judgment states that the right only affects the results obtained from searches made on the basis of a person's name and does not require deletion of the link from the indexes of the search engine altogether. That is, the original information will still be accessible using other search terms, or by direct access to the publisher's original source.
More specifically, those Working Party Guidelines set out thirteen criteria to be taken into account in deciding whether search results should be delisted:
(1) Does the search result relate to a natural person – i.e. an individual? And does the search result come up against a search on the data subject's name?
(2) Does the data subject play a role in public life? Is the data subject a public figure?
(3) Is the data subject a minor?
(4) Are the data accurate?
(5) Are the data relevant and not excessive? (a) Do the data relate to the working life of the data subject? (b) Does the search result link to information which is allegedly constitutes hate speech/slander/libel or similar offences in the area of expression against the complainant? (c) Is it clear that the data reflect an individual's personal opinion or do they appear to be verified fact?
(6) Is the information sensitive in the meaning of Article 8 of the Directive?
(7) Are the data up to date? Are the data being made available for longer than is necessary for the purpose of the processing?
(8) Is the data processing causing prejudice to the data subject? Do the data have a disproportionately negative privacy impact on the data subject?
(9) Does the search result link to information that puts the data subject at risk?
(10) In what context was the information published? (a) Was the content voluntarily made public by the data subject? (b) Was the content intended to be made public? Could the data subject have reasonably known that the content would be made public?
(11) Was the original content published in the context of journalistic purposes?
(12) Does the publisher of the data have a legal power – or a legal obligation – to make the personal data publicly available?
(13) Do the data relate to a criminal offence?
In the case of NTI, the plaintiff made two claims: that Google’s search results brought forth inaccurate information, as well as the claim that the plaintiff was entitled to have the information delisted. The judge rejected all of NT1’s claims of inaccuracy, based largely on NT1’s own evidence on the application. The judge noted:
91 He did not perform well, and made a bad impression on me. He began by giving long-winded and elaborate answers to simple questions, showing a tendency to make speeches rather than give answers. He tended to evade, to exaggerate, to obfuscate, and worse. Examples of such behaviour which can be given in this public judgment include the following.
(1) … Confronted with a newspaper report from the 1990s asserting that Alpha had a specified number of criminal convictions for trading standards offences, and a larger specified number of civil claims standing against it, the claimant said it was a long time ago and he could not be expected to comment on “unparticularised allegations like that”.
(3) … Maybe his memory of the detail is poor, but I am confident that he had not forgotten these matters altogether and that his evidence was not frank. He was equivocating, dissembling, and blustering.
(4) The claimant repeatedly used extravagant language to denounce suggestions, courteously put to him by Mr White, that he was involved in the management of Alpha. He rejected these as variously “bizarre”, “ridiculous” or “palpable nonsense”. Although he also gave reasons for rejecting such suggestions, such persuasive force as they had was undermined by the exaggerated language used. The impression conveyed was of an attempt to make a case by (metaphorically) shouting. After all, it does not seem inherently ridiculous to suggest that a person who returns from abroad to deal with a crisis, owns nearly all the shares in a company, and is able to move over £6m out of the company to his personal accounts in Switzerland has a good measure of knowledge of the company's day to day business and practical control over its conduct. Nor does it seem immediately obvious that, as NT1 would have it, the business was in fact under the effective control of a man in his early 20s who held a tiny minority stake in the company.
The judge also noted that NT1 repeatedly claimed that he never had the opportunity to present anything to contradict the judge's impression at his criminal trial, despite it being pointed out to him that he had had such an opportunity and had chosen not to testify.
In applying the thirteen criteria, the judge concluded that NT1 had at one point clearly been a public figure “as a person who played a leading role in a controversial property business, who was tried, convicted, and sentenced for criminal conspiracy in connection with that business and charged but never tried for another conspiracy” (para 138) but that the argument that the public needed to know about his past to guard against impropriety had gradually weakened over time. The judge also found that the information was, other than some health information related to the trial, not intrinsically private: “It was business conduct, and it was criminal. Having been identified and then made the subject of a public prosecution, trial and sentence, it all became essentially public” (para 140).
Further, the judge found that although NT1 claimed prejudice, this claim was not persuasive. He alleged that he had been subject to threats, but the only evidence of this was more than fifteen years previously while he was still in prison. He claimed to have had a business deal fall through because of a person’s knowledge of his conviction, but this was nine years previously when his conviction was not yet spent. He also claimed to have become a social pariah, but there was really only a general assertion of this claim. In any event, the judge noted, there were causation issues:
151…NT1 cannot rely on any harm that results from legitimate processing in the past. As his witness statement concedes, “up to a point the fact of my conviction is to blame” for the harm to personal and professional relationships of which he complains. It is not just that his own conduct is one cause of that harm. Many will have got to know the crime and punishment information as a result of earlier, legitimate, communication via Google or otherwise, at a time when the conviction was not spent. This is particularly true of pre-existing contacts, both business and personal.
The most important criterion, the judge concluded, was the last, that the information related to a criminal offence. It was here that the interaction between various sources of authority became most complex: although in the case of a spent conviction the claimant “is entitled to be treated for all purposes as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of” the conviction, there were other competing interests, and other relevant rules. The judge concluded:
166 Without attempting to be exhaustive I have arrived, for the purposes of these cases, at the following reconciliation:
(1) The right to rehabilitation is an aspect of the law of personal privacy. The rights and interests protected include the right to reputation, and the right to respect for family life and private life, including unhindered social interaction with others. Upholding the right also tends to support a public or societal interest in the rehabilitation of offenders. But the right is not unqualified. It will inevitably come into conflict with other rights, most notably the rights of others to freedom of information and freedom of expression...
(2) The starting point, in respect of information disclosed in legal proceedings held in public, is that a person will not enjoy a reasonable expectation of privacy (Khuja,  above). But there may come a time when they do. As a general rule (or “rule of thumb”, to adopt the language of the Working Party), the point in time at which Parliament has determined that a conviction should become spent may be regarded as the point when the convict's Article 8 rights are engaged by any use or disclosure of information about the crime, conviction, or sentence (see T, [49(2)] above). But this does not mean that in 1974 Parliament enacted a right to confidentiality or privacy from that point on (Pearson, L v The Law Society, [47-48] above)…
(3) Part of this balancing exercise will involve an assessment of the nature and extent of any actual or prospective harm. If the use or disclosure causes, or is likely to cause, serious or substantial interference with private or family life that will tend to add weight to the case for applying the general rule. But where the claim relies or depends to a significant extent upon harm to reputation, the Court is in my judgment bound to have regard to s 8 of the 1974 Act. It is possible to identify a public policy that underlies that section, and which qualifies the public policy that underpins s 4. It is that offenders whose convictions are spent should not be able to obtain remedies for injury to their reputation (or consequent injury to feelings) resulting from the publication in good faith of accurate information about the spent conviction, or the related offending, prosecution or sentence…
(4) Another aspect of the proportionality assessment will be the nature and quality of the societal benefits to be gained in the individual case by the use or disclosure in question. Freedom of expression has an inherent value, but it also has instrumental benefits which may be weak or strong according to the facts of the case. The fact that the information is, by its very nature, old will play a part at this stage also.
(5) Most, if not all, of these points about spent convictions are likely to be relevant in more than one context…
Balancing these considerations, the judge concluded that NT1 had not made out a case for delisting. NT1’s conviction was for serious dishonesty on a substantial scale, and he was unwilling to acknowledge his guilt. Indeed, he had employed a social media company to place articles asserting his reputation for integrity in business on various sites, in a clearly misleading way. He was an unreliable and dishonest witness, and his “conduct, including his evasive and dishonest conduct in the witness box, demonstrates that he cannot be trusted to provide an accurate account of his business background or credentials to those with whom he comes into contact in the course of business now and in the future” (para 169).
The judge also noted that although NT1’s conviction was spent, at the time he was convicted his sentence (four years imprisonment) was one which could never have become spent under the law at the time: it was only a later amendment which placed him on the very edge of eligibility to have his conviction become spent. The crime and punishment information was not information of a private nature and he did not enjoy any reasonable expectation of privacy in respect of that information at the time of his prosecution, conviction and sentence. Finally:
170…The information retains sufficient relevance today. He 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. Delisting would not erase the information from the record altogether, but it would make it much harder to find. The case for delisting is not made out.
In contrast to NT1, NT2 was found to be “an honest and generally reliable witness who listened carefully to the questions put to him, and gave clear and relevant answers” (para 176). He had also been charged with offences, but in his case he had pleaded guilty and served a short sentence: the offence related to computer hacking and telephone tapping which he had authorised against protesters, and they were not offences from which he had obtained any financial gain. In this case the judge concluded that the delisting should be ordered:
203 The nature of the conviction seems to me to be a significant factor in my evaluation. It is a conviction for invasion of privacy, not for any form of dishonesty. The claimant did not contest the charges, but pleaded guilty. My conclusions as to the claimant's state of mind are also relevant. If he acted in good faith, believing the company's business to have been targeted by malign actors, that reduces his culpability and the impact on his integrity. If his principal motivation was, as I find, to identify those responsible for trespass, criminal damage, and death threats and to take action against them, then the case for suggesting that his past crimes undermine his present environmental credentials, or his more recent claims about his commitment to environmental principles, is threadbare. The claimant's current attitude to his criminality is also material. In oral evidence he said “It was a cataclysmic mistake, for which I pleaded guilty and took full responsibility for. I do not know what else I can say about it.” He does not cavil; his attitude is one of remorse, which I assess as genuine.
204 … I have concluded that the relevance of the crime and punishment information to any decisions that might need to be made by investors in, staff of, or customers of the businesses referred to by Google is slender to non-existent.
Also potentially relevant was that NT2 had himself given interviews in which he had talked about the convictions, offering his explanation, and that these interviews were among the items NT2 wanted delisted. Google argued that this militated against delisting, but the judge noted that at the time these interviews were given, NT2’s conviction had not yet become spent, which changed the analysis. Further, to the extent that the basis for the distribution of the interviews was consent, NT2 had now withdrawn that.
Like NT1, NT2 had placed information on a website and in a blog, but the judge distinguished between the two efforts:
206 As for the website and blog, the content relied on was also published before the claimant's conviction became spent. The claimant's evidence is that the purpose was not to promote new business, but rather, on advice, to counter the numerous references to his conviction that appeared in prominent webpages in Google's Search results against his name. I accept his evidence on this point. To that extent, his case resembles that of NT1. Unlike NT1, however, this claimant made no claims that were inconsistent with the evidence or findings against him, or extravagantly beyond what might have been justified by reference to the principle of rehabilitation. NT2 had not contested, but had admitted, the prosecution allegations. Neither his postings nor his interviews made false claims to have or to deserve a long-standing reputation for integrity.
Ultimately the judge concluded with regard to NT2:
223 My key conclusions in respect of NT2's delisting claim are 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, so that an appropriate delisting order should be made. The conviction was always going to become spent, and it did so in March 2014, though it would have done so in July of that year anyway. NT2 has frankly acknowledged his guilt, and expressed genuine remorse. There is no evidence of any risk of repetition. His current business activities are in a field quite different from that in which he was operating at the time. His past offending is of little if any relevance to anybody's assessment of his suitability to engage in relevant business activity now, or in the future. There is no real need for anybody to be warned about that activity.
The judge did grant a delisting order with regard to NT2, but did not award damages against Google: it had not been shown that Google failed to take “such care as in all the circumstances was reasonably required” to comply with the relevant requirements.