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be returned when a person’s name is searched, and it is open to them to delete or “de-index” links which are old and out of date.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.