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Category: Google

Google settles out of court with individual who has spent conviction, in the UK’s first ‘right to be forgotten’ case involving criminal records

The problem of spent convictions appearing online is a real and significant problem for many people.

Two individuals with spent convictions brought claims against Google for refusing to de-list search engine results that contained details of their now spent convictions. The cases, the first in the UK on the so-called ‘right to be forgotten’, had a judgment from the High Court in April this year. One case was successful (NT2) and the other one failed (NT1).

The one that failed had appealed to the Court of Appeal and the case was due to be heard today, the 20th December, but the appeal has been withdrawn as the case has been settled. This could be because Google has agreed to de-list. It could be because NT1 has decided not to proceed with the appeal.

We will be doing more work in early 2019 to better understand the implications of the High Court judgment from back in April.

As it stands, we continue to suggest that people with spent convictions apply to Google and other search engines if there are search results that link to articles with spent convictions. If the request to de-list is refused, we encourage people to raise a formal complaint with the ICO and we’re still collecting evidence of responses to these types of requests.

Related links

  1. Read our comment on the High Court judgment from back in April this year.
  2. Find out more about our work on the so-called ‘Google-effect’ on our website.

Unlock comment: High Court judgment on ‘Right to be Forgotten’ and spent convictions case

Commenting on the High Court ruling on the Right to be Forgotten and spent convictions case, Christopher Stacey, co-director of Unlock, a national charity for people with convictions, said:

“The judgment from the High Court represents a key victory for people with a criminal record. More and more in recent years, people with spent criminal convictions have found their past mistakes have continued to haunt them because employers, insurers and members of the public have been able to use internet search engines such as Google to get to old media reports relating to their now spent record.

 

“The purpose of the Rehabilitation of Offenders Act 1974 is to protect people from stigma and discrimination once their conviction becomes spent, with the convictions then only lawfully subject to disclosure in accordance with strict rules in relation to specific roles, such as working with children.

 

“Internet search engines play a key role here because they control what results will be returned when a person’s name is searched, and it is open to them to delete or “de-index” links which are old and out of date.  However, we have seen a significant number of instances of internet search engines refusing such requests, and the Information Commissioner’s Office then rejecting an appeal from the affected person. The High Court’s judgment means that internet search engines such as Google will need to review their approach so as to ensure that sufficient weight is attached to the fact a conviction is spent”

The High Court judgment relates to two cases involving individuals with spent convictions that brought claims against Google for refusing to de-list search engine results. One case was successful (NT2) and the other failed (NT1) – extracts of the judgment are below.

 

Notes

  1. The High Court judgment is available online.
  2. The High Court judgment has been covered in articles by the BBC and Guardian as well as by Carter Ruck, the solicitors who acted for the individuals in this case.
  3. Unlock is working closely with the solicitors Carter Ruck and have several other individuals with on-going de-listing and take-down complaints.
  4. In its submissions, the ICO endorsed the principle that “once a criminal has served his or her time, it is important that the ability of that individual to rehabilitate themselves is not unduly prejudiced.”
  5. Key extracts of the judgment are copied below.
  6. Find out more about our policy work on the ‘google-effect’ and spent convictions.

 

NT2 case – Succeeded 

[Paragraph 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.

 

NT1 case – Failed

[Paragraph 170] The key conclusions I have drawn are these. Around the turn of the century, NT1 was a public figure with a limited role in public life. His role has changed such that he now plays only a limited role in public life, as a businessman not dealing with consumers. That said, he still plays such a role. The crime and punishment information is not information of a private nature. It was information about business crime, its prosecution, and its punishment. It was and is essentially public in its character. NT1 did not enjoy any reasonable expectation of privacy in respect of the information at the time of his prosecution, conviction and sentence. My conclusion is that he is not entitled to have it delisted now. It has not been shown to be inaccurate in any material way. It relates to his business life, not his personal life. It is sensitive information, and he has identified some legitimate grounds for delisting it. But he has failed to produce any compelling evidence in support of those grounds. Much of the harm complained of is business-related, and some of it pre-dates the time when he can legitimately complain of Google’s processing of the information. His Article 8 private life rights are now engaged, but do not attract any great weight. The information originally appeared in the context of crime and court reporting in the national media, which was a natural and foreseeable result of the claimant’s own criminal behaviour. The information is historic, and the domestic law of rehabilitation is engaged. But that is only so at the margins. The sentence on this claimant was of such a length that at the time he had no reasonable expectation that his conviction would ever be spent. The law has changed, but if the sentence had been any longer, the conviction would still not be spent. It would have been longer but for personal mitigation that has no bearing on culpability. His business career since leaving prison made the information relevant in the past to the assessment of his honesty by members of the public. 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.

Rehabilitation in the internet age – The Google-effect and the disclosure of criminal records

The Rehabilitation of Offenders Act 1974 provides people with criminal records protection from discrimination once their criminal record becomes ‘spent’.

In an article for the Probation Journal, published this month, Christopher Stacey highlights how media reports are increasingly available online and often mean spent convictions continue to be accessible to employers and others.

However, he also looks at a landmark case in 2014 that established a ‘right to be forgotten’, which enables people to ask for search results to be delisted from internet search engines. He examines to what extent this helps people with convictions.

The article is available to read and/or download from the Probation Journal

Possible legal remedies for the online publication of spent convictions

If you have a spent conviction and are suffering reputational harm or distress as a result of material about that conviction being published online and/or which features in online searches against your name, legal remedies may be available.

We are currently working with Carter-Ruck, a law firm specialising in this area, who are willing to advise people with spent convictions on a “no win no fee” basis.

Further details can be found on our information hub.

Unlock speak at ICO policy conference: “The Google effect – Criminal records and the ‘right to be forgotten’”

I was pleased to be invited to speak today at the ICO’s Data Protection Policy Conference.

With the title “Privacy versus the right to know: balancing privacy and access to personal information in the internet era”, I was asked to come and take part in a panel discussion, “Technology, information and its consequences”, speaking alongside Timothy Pitt-Payne QC and Daniel Tench.

The ICO are planning to publish a report on the conference in the coming months, but for the meantime, below are the opening comments that I’d prepared for the discussion. You can get a good sense of the rest of the conference by taking a look at the twitter hashtag #ICOpolicyconf15

Opening comments

There are over 10.5 million people in the UK with a criminal record. The vast majority have put their former mistakes behind them and are living crime-free and law-abiding lives. However, their criminal record can restrict their enjoyment of full and inclusive citizenship – in some cases, many years after the offences for which they have already served their sentences in full. Examples include discrimination in the field of employment, difficulties obtaining insurance and other financial services, restrictions on travel and access to educational opportunities and exclusion from participation in aspects of civil society.

Unlock is an independent, award-winning charity for people with convictions which exists for two simple reasons. Firstly, we assist people to move on positively with their lives by empowering them with information, advice and support to overcome the stigma of their previous convictions. Secondly, we seek to promote a fairer and more inclusive society by challenging discriminatory practices and promoting socially just alternatives.

Today, my focus is on how people (and by that, I include employers, insurers and other organisations, as well as the public) access or use information about criminal records that they shouldn’t be using.

Discrimination and ‘legal rehabilitation’

People with convictions are the least likely disadvantaged group to be employed. They make up between a quarter and a third of unemployed people. 75% of employers discriminate against applicants on the basis of a criminal record.

Since the launch of the Police National Computer, criminal records have evolved from being used merely for crime detection purposes, to becoming a means of categorizing people as potentially ‘unsuitable’, ‘risky’ or even ‘undeserving’.

The Rehabilitation of Offenders Act is designed to enable people with convictions to move on their lives once they have become ‘rehabilitated’ in the eyes of the law.

In theory, once you’ve stayed out of crime for a certain time, your record can in most cases become spent. This means that for most jobs it no longer needs to be disclosed to most employers. Although that doesn’t apply to many sensitive roles (particularly working with children or vulnerable adults, where most people with convictions will have to disclose all their convictions for the rest of their life), on the whole, for many jobs, spent convictions do not need to be disclosed. This allows people who have stayed out of crime to start with a clean slate. It means you can apply for jobs without having to disclose it.

Google effect

However, that law first came into force over 40 years ago. Times have changed. Nowadays, it’s quite common for employers to use the internet as a key part of their recruitment process. To some, it’s human nature to ‘google’ somebody.

Modern forms of online news reporting are compromising the extent to which even spent convictions can remain private.

The so-called ‘google effect’ can lead to information about criminal offences remaining publicly accessible for many years, undermining the purpose of the Rehabilitation of Offenders Act.

So what happens in your criminal record details are online? In theory, once it’s spent, if an employer finds out about it, they are legally obliged to ignore it. Even further, an employer is legally required to not take into account spent convictions unless it’s for a job that is exempt, However, in practice this is very difficult to enforce – as an applicant, you have very few rights, and we often find employers using spent convictions to withdraw job offers or sacking employees many years later.

The reporting of convictions online, and the lack of regulation in this area, means that many people find that they face judgement and discrimination long after their convictions legally become ‘spent’. The fact that around a third of the cases ICO received on this issue involving criminal convictions in some way shows how important this issue is.

Right to be forgotten

So the Google Spain judgement, and the concept of ‘a right to be forgotten’ is one which, in theory, is very promising. However, like the ICO, we’ve been surprised at the low number of enquiries to our Helpline,

But what’s clear is that this is an area that is constantly evolving. Having seen a number of responses from Google to requests made by individuals, there seems to be some improvement in how they’re dealing with requests. However, we’re still seeing standard template responses from Google. They’re failing to properly consider whether convictions are spent. They also don’t seem to be providing direct links to the ‘data protection authority’ (i.e. the ICO) – so to many people, that’s the end of it. And the response of some newspapers to reprint the cases of those they’ve been notified by Google having been delisted has certainly created a fear amongst applicants of, instead of removing details, unintentionally drawing more attention to their details online. The absence of ‘success stories’ understandably makes many people question whether there’s any point.

So perhaps it’s useful to speak about a success story. This will perhaps emphasise the issue.

Sonia

“8 years ago I was convicted of Arson. I set fire to my own home as part of being in an abusive relationship.

As a result of having a very understanding boss, I had kept my job and just wanted to move on and concentrate on my career so I completed a degree. A fantastic job opportunity came up and I applied. I was totally honest and disclosed my conviction as I knew it was going to show up on my DBS which they requested. I was delighted to get the job and knew my life was now going in the right direction again and I was never going to look back.

In the meantime I had met a ‘nice’ man and we married. The relationship seemed to be going well, but I eventually found out he was leading a double life.  I told him to leave and I moved back in with my parents. I filed for divorce as I felt I couldn’t ever trust this man again and that is when my life came crashing down again.

He suddenly decided that he wanted revenge and told my employer that they were employing a very dangerous person who was a risk to others because of my conviction.. He had also printed off the newspaper article he had found on Google about me and said he was going to post it around the city so everyone could read it and destroy me. His attacks on me were malicious and it was terrifying not knowing what this man could do and the lengths that he would go to. I was advised by my solicitor and my employer to file for a Harassment Order and inform the Police of his allegations and intentions. My employer could see what this man was trying to do to me and supported me wholeheartedly.  Despite having a spent conviction, that terrible newspaper article was being used against me again. It just wasn’t fair and I felt that enough was enough. I had to fight to get the past ‘put to bed’.”

After making her request through Google’s online process, they agreed to remove the links. She used this success to contact the newspaper directly and they agreed to remove the source content.

This shows how this system has the potential for it to benefit individual. But there are issues.

Issues

  • How can the Rehabilitation of Offenders Act be enforced in a digital age?
  • The ‘right to be forgotten’ is not very well known
  • Not many people are taking their requests to the ICO after refusals from Google
  • The process
    • The need for it to apply across all domains – ICO’s enforcement
    • The need to apply to multiple search engines
    • The need to also remove the source content

Conclusion

Whilst the ‘right to be forgotten’ is slowly being established as a legal principle, Unlock remains concerned that employers and others are routinely able to access information about people to which they are not legally entitled.

We are keen to see the ICO strengthen their response to Google and others that continue to link to, or host, personal details of old and minor criminal records online, as well as taking action against those employers and others that use spent conviction details they’ve found out about online (or through other methods, such as enforced subject access).

 

Written by Christopher Stacey, Co-Director of Unlock

 

Useful links

  • You can follow the twitter discussion about the conference at #ICOpolicyconf15
  • For details of our policy work on the ‘google effect’ and criminal records, click here
  • For our practical information for people with convictions on how to remove links to search results, click here

Google ordered to remove search results about a spent conviction

In an interesting development to the issue of the ‘google-effect’ and spent convictions, the Guardian has reported that Google has been ordered by the Information Commissioner’s Office to remove nine links to current news stories about older reports which themselves were removed from search results under the ‘right to be forgotten’ ruling.

The search engine had previously removed links relating to a 10 year-old criminal offence by an individual after requests were made as the offence is now spent under the Rehabilitation of Offenders Act.

Removal of the original links from Google’s search results led to new news posts detailing the removals, which were then indexed by Google’s search engine. Google refused to remove these further links, which included details of the original criminal offence, despite them forming part of search results for the individual’s name, arguing that they are an essential part of a recent news story and in the public interest.

Google now has 35 days from the 18 August to remove the links from its search results for the individual’s name.

We will be keeping a close eye on how this case develops, and hope that Google will take the sensible steps of removing the links and upholding the privacy of the individual concerned.

 

Useful links

  • Have you managed to get details of your convictions removed from search results? Let us know – send us your experience
  • More information on issue of the ‘google-effect’ and spent convictions can be found on our policy page here.
  • We also have practical information for people dealing with the google-effect on our information site.

‘Right to be forgotten’ – One year on

The Telegraph has published an article which looks at the impact of the ‘right to be forgotten’ 12 months on from the original court decision. Interesting extracts can be found below, but the full article is available here.

 

Since then, Google claims to have processed 253,617 requests to remove 920,258 links, and approved just over 40 per cent of those requests. In the UK alone, the company has received 32,076 requests to remove 126,571 links, and approved 37.5 per cent.

 

Examples of removal requests include:

  • A man requesting the removal of a link to a news summary of a local magistrate’s decisions that included the man’s guilty verdict. Under the UK Rehabilitation of Offenders Act, his conviction has been spent (approved)

 

In Britain, 183 people have reportedly complained to the UK’s data protection watchdog, the Information Commissioner’s Office (ICO), after Google denied their requests to remove links.

 

The ICO has agreed with Google’s conclusions in around three quarters of these cases, but there are 48 cases where the ICO believes Google “hasn’t got it quite right”.

 

Google has been asked to review these cases, and in many cases has reversed its decision, according to the ICO. However, the search company faces possible legal action from the ICO if the remaining cases are not resolved.

 

“We’ll be looking to resolve the remaining cases through discussion and negotiation with Google, though we have enforcement powers available to us if required,” said ICO deputy commissioner and director of data protection, David Smith.

 

“The European ruling is about providing individuals with a suitable mechanism for getting information which is no longer accurate or relevant to be removed from a search engine’s results page. If there is a clear public interest in the information remaining available then it will stay there as many complainants to our office have discovered.”

Google removes search results of person with spent conviction

Today, the Guardian has published an article on Google’s response to the ‘right to be forgotten’.

In response to a particular example on their website, Google said: “A man asked that we remove a link to a news summary of a local magistrate’s decisions that included the man’s guilty verdict. Under the UK Rehabilitation of Offenders Act this conviction has been spent. The pages have been removed from search results for his name.”

Radio 4’s ‘The Report’ looks at ‘the right to be forgotten’

On the 18th September, Radio 4’s ‘The Report’ broadcast an edition which focused on the ‘right to be forgotten’.

In particular, they look at some particular cases that relate to people with criminal convictions.

You can listen to the recording here.

Are you affected by the online publication of your spent convictions?

The ‘Google effect‘ can result in discrimination from employers, universities and others. If you have a spent conviction that can still be found online  there may be a legal remedy. The GDPR gives people ‘the right to erasure’ – sometimes called ‘the right to be forgotten’.

The publication of an item, article or link which refers to a spent conviction and identifies the person concerned could be legally actionable as a misuse of private information and/or a breach of data protection rights.

Carter-Ruck, a law firm specialising in this area, has agreed to work with Unlock to advise people with spent convictions on a “no win no fee” basis. If there are grounds, this could mean action to have links removed from online searches against your name and/or the articles themselves taken down. In some  cases this may include a claim for costs and/or damages.

If you would like Carter-Ruck to consider your case, please complete this questionnaire. Alternatively, you can print and complete it manually, sending it by post to the address on the questionnaire. Your details will be treated in the strictest confidence and will not be shared beyond Unlock or Carter-Ruck without your permission.

We will pass all completed questionnaires to Carter-Ruck, who will contact you directly to advise, answer your questions and, where appropriate, to take your claim forward.

Carter-Ruck will keep us regularly up-to-date with progress on your claim.

Any information you provide will be kept in line with our confidentiality policy. Any personal information provided to us will not be shared externally without your consent.

Find out more about how we handle your data.

Learn more about what you can do if your spent conviction is used unfairly

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