The Right To Be Forgotten: What We Know Now

25 April 2018

The right to be forgotten has been one of the most contentious aspects of recent data protection law. In 2014, the European Court of Justice (ECJ) acknowledged that one should not be continually haunted by private information which is out of date or irrelevant, and ordered Google to delist articles linking to a historic website referring to the applicant’s bankruptcy.

Some view the right to be forgotten as being an unnecessary encroachment on freedom of expression, and a cumbersome regulatory burden for search engines. For others, the right to freedom of expression needs to be balanced against the right to privacy, and specifically the right not to be haunted by ones past indefinitely.

There are still significant uncertainties as to the scope of the right to be forgotten. One of these uncertainties was whether it applies to historic convictions, particularly where they are deemed ‘spent’ under the Rehabilitation of Offenders Act.

The position has been clarified in the widely publicised case of ‘NT1’ and ‘NT2’ v Google. The case concerned two businessmen (whose identities were anonymised by the Court) who applied for articles about historic convictions to be delisted from Google search results for their name.

The judgment took some lawyers by surprise because NT1’s case failed, and NT2’s case succeeded. The commentary on the contrasting outcomes provides useful guidance as to when a delisting request in respect of a historic conviction is likely to succeed or fail.  

Success & Failure

The following are the main reasons why NT1’s right to be forgotten request failed, and NT2’s was successful.

Inaccuracy: One of the key reasons why NT1’s application failed was that the Judge was unconvinced that the articles which he wanted Google to delist were inaccurate. By contrast the Judge felt that the articles concerning NT2 were inaccurate, as they distorted the nature and extent of NT2’s criminality.

Nature of the conviction: NT1’s conviction was in respect of criminal conspiracy relating to his property business in the 1980s. He served a 4 year prison sentence. NT2’s conviction was for conspiracy to carry out unlawful surveillance on an environmental group which had sent death threats to him. NT1’s conviction was deemed more serious than that of NT2, in view of the fact that one of the criteria for finding NT1 guilty of criminal conspiracy was dishonesty, and NT1’s sentence was significantly longer than that of NT2.

Relevance of the conviction: The Judge found that NT1’s conviction was directly relevant to his current occupation, and as such people considering entering into business with NT1 had a right to know about it. The Judge did not take well to NT1, and held that he remained an unreliable character, and that as such his conviction was still relevant. On the other hand, NT2’s conviction was no longer relevant to NT2’s work, and NT2 expressed “genuine remorse” for his past crime.

Lessons Learnt

This case provides useful guidance as to when a right to be forgotten request in respect of a historic conviction might succeed or fail on. However, there are several areas where lawyers need more clarity.

First, NT1 and NT2 are arguably at the opposite ends of the spectrum of ex-convicts. NT1 is portrayed as being an unrepentant and unreformed character who committed a serious criminal offence, whereas NT2 is considered a new man who has learned from his past indiscretion. It will be interesting to see how Google and the Data Protection regulator apply this judgment when considering right to be forgotten requests from people who are at neither extreme. For example, what about someone who committed a very serious offence, but in an area which is totally irrelevant to their current occupation?

Second, both cases concerned articles about actual convictions, rather than allegations of criminality, or reports on the fact that someone has been arrested where they are not subsequently charged or convicted. This in turn poses an additional question, namely if someone has not been convicted of any offence, surely they should have an even stronger claim to delink articles about historic allegations? The case of NT1 and NT2 has not been able to address this.  

Four years on and the rights, wrongs and interpretation of the ECJ’s 2014 right to be forgotten ruling rumble on.

Receive our monthly newsletter

About the Author

Jane Ashford-Thom

Associate

Jane advises prominent individuals and the companies they represent on reputation and privacy issues.

646 934 6219