The ‘Google-effect’ and spent convictions

The problem

Employers regularly use internet search engines to ‘check-up’ on job applicants. Although only a small percentage of cases receive media coverage, where they do, the effect can be long-lasting.

Although the Rehabilitation of Offenders Act 1974 is designed to enable people with convictions to move on with their lives once they have become ‘rehabilitated’, the reporting of their 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’.

There is a system with Google (and other search engines) where individuals can request a removal of search results. However, this isn’t always accepted even when the conviction is spent. Furthermore, even if the search results are removed, that doesn’t remove the actual content – this is reliant on the host organisation, and many news outlets (including the BBC) regularly refuse to edit reports that contain spent convictions.

The Rehabilitation of Offenders Act 1974 doesn’t provide a remedy by which to take action against an employer who unlawfully takes account of a spent conviction, nor enables individuals to take action against newspapers and websites that continue to publish details of convictions after they become ‘spent’.

What we think needs to change

When considering a request to de-list search results, search engines should operate a presumption that if the conviction is spent, it should de-link URLs that refer to those spent convictions. Requests would only be refused if there are clear countervailing public interest considerations.

News publishers should operate a presumption that URLs referring to spent convictions would be removed from online databases.

What we're doing

Since the news in 2014 of the “right to be forgotten”, we are actively looking at if and how this is being applied to people with spent convictions.

We are working with Carter Ruck, a law firm specialising in this area, on potential legal remedies for the online publication of spent convictions

We are collecting evidence of people who have applied for their “search results” to be removed by Google and others.

We are encouraging people who have been unsuccessful with Google (or other search engine) to refer their case to the ICO as a formal complaint.

Background

In May 2014, the Court of Justice of the European Union (CJEU) ruled on a case surrounding the online availability of personal information.

The case, often referred to as the Google Spain “Right to be Forgotten” ruling, was brought by a Spanish man who complained that an auction notice of his repossessed home on Google’s search results infringed his privacy. The court found in his favour, and this has had wide-reaching consequences for search engines like Google.

The court found that:

1. The 1995 Data Protection Directive applied to search engines – essentially, that they are controllers of personal data.
2. Individuals have the right – under certain circumstances – to ask search engines to remove links with personal information about them. This applies where the information is inadequate, irrelevant or excessive.
3. The right to be forgotten is not absolute – will need to be balanced against other rights
4. A case-by-case assessment is needed to consider the type of information, its sensitivity for the individual’s private life, and the interest of the public in having access to that information. The role the person requesting the deletions plays in public life might also be relevant.

The ruling only covers the removing of the search results – under “the right to be forgotten”, the information will still exist on the website that published the original article but Google won’t be able to deliver matches to some enquiries that are entered. Deletion of the original information is still be the responsibility of the website owner.

Information on search results will only disappear from searches made in Europe. Queries piped through its sites outside the EU will still show the relevant search results. This remains controversial.

However, many people are still seeing the ruling as a potential way of dealing with the ‘google-effect’ that often haunts people for lots of different reasons,

Note: The phrase “right to be forgotten” is quite misleading – ultimately, it gives individuals the “right to delist” – i.e. stop links appears in search results – that is, to require search engines to remove links to personal data which was “inadequate, irrelevant or excessive.”