• Tim Bell

Google or Gone: UK Court Rules on ‘Right to be Forgotten’

The High Court in the UK ruled last week on two relatively similar (but intriguingly different) right to be forgotten cases against Google, and the results are interesting – if not entirely helpful for Google when trying to make decisions in the future on whether to accept an individual’s request to have certain information de-listed from their search results.

The European Court of Justice set out the general rule for these decisions in 2014: the search engine which lists results leading to information about a person must balance the individual’s right to privacy against Google’s (and the greater public’s) right to display / read publicly available information.

The two case both related to business who were impacted negatively in a commercial nature and distressed by the continued listing by Google of material referring to criminal offences they had been convicted of years previously. Despite this basic similarity, the nature of the offences and the individuals’ actions subsequently resulted in the same court declaring different results for each person.

For the first individual, the court found that the crime in question was not undertaken with anyone connected to his company as the victim; the crime related to interception of communications and was to a third party, not a shareholder, employee or customer. They also found that the individual had shown remorse. Justice Warby, presiding, noted that the balance favoured the individual in this case; there was likely to be little difference to his current customers whether this crime had occurred.

The second individual was, in the court’s opinion, at the other end of the spectrum. This person had not shown any remorse for their actions, and had in fact misled the court. Further, the crime they had committed was in the course of business, and related directly to financial matters. The court took the view that those people who continued to do business with him were entitled to be able to access the information which confirmed this. Interestingly, the court did not consider that the time limits in the UK’s Rehabilitation of Offenders Act (which allows criminals convicted of minor crimes to withhold mention of those crimes if asked after a period of time has elapsed) applied to an online listing of this type.

So does this ruling affect only Google? Probably not. An example of another type of organisation this could apply to would be a local newspaper; they typically report on local court cases and convictions, and are increasingly making their old editions available online. They may well be required to remove, or censor, old editions which refer to criminal convictions, particularly if those older editions are available online.

The bigger issue though is the - almost deliberate - lack of clarity. Each person’s details need to be considered on their own merit, and a decision made based on this balance between the rights of the individual and the rights of the wider society, based on a subjective consideration of the original crime, the persons actions since and the benefit to society as a whole. This is further complicated by the fact that different rules will apply in different countries, even within the EU, as case law diverges. The result: Google is likely to face challenges if it takes anything other than a very obedient approach to those requests to be forgotten which it receives. Expect more of these cases in a court near you soon!

Tim Bell is Managing Director of DPR Group, leading Data Protection Representatives for non-EU companies under Article 27 of GDPR. Please contact DPR Group at contact@dpr.eu.com for more information, or visit our website at www.dpr.eu.com.



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