Search engine giant Google has been ordered to remove links to articles about the historic criminal convictions of a businessman in the first 'right to be forgotten’ case to be decided in England and Wales. Ruling in NT 1 and NT 2 v Google LLC today, Mr Justice Warby reached opposite conclusions about the two claimants, identified as NT 1 and NT 2, based on the nature of the criminal convictions and the extent to which publication of information related to the claimant's private life.
Warby's judgment considers, among other points, the European Court of Justice’s 2014 decision in Google Spain, as well as the 1974 Rehabilitation of Offenders Act, the Data Protection Act and the European Convention on Human Rights. It is also one of the first High Court judgments to cite the EU General Data Protection Regulation, which comes into force next month.
NT 1 and NT 2 had sought to have links to articles about criminal convictions relating to their separate business activities and dating back more than 10 years removed under data protection law and the tort of misuse of private information. According to the judgment, NT 1 had been sentenced to four years in prison for criminal conspiracy in the late 1990s in connection with ‘a controversial property business that dealt with members of the public’.
NT 2 had been involved in 'a controversial business that was the subject of public opposition over its environmental practices’. He received a short custodial sentence after pleading guilty to conspiracy involving unlawful investigation methods ‘rather more than 10 years ago’.
Both convictions were reported in the press at the time. As the two cases’ factual contours were similar and they raised similar issues of principle they were heard one after another and with the same representation, the judgment states. The information commissioner intervened in the case.
Warby, who presides over the Queen's Bench media and communications list, said that the issues in question included whether the continued listing of links to press articles involved an unjustified interference with privacy rights and if so whether damages should be awarded. 'These are novel questions, which have never yet been considered by this court,' he said, noting that much of the relevant legislation pre-dated the internet.
Warby rejected Google's defences that the search engine enjoyed a journalistic exemption from the Data Protection Act and that the claims were disguised defamation claims and thus an abuse of process.
However dismissing the claim by NT 1, Warby ruled that the information about the conviction was 'essentially public in character' and relates to the claimant's business rather than personal life. '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,' Warby said.
In the case of NT 2, Warby ruled that the conviction was spent under the 1974 act and that there is no plausible reason to suspect that the wrongdoing would be repeated. The fact that the claimant had a young family also engaged his Article 8 rights to private and family life, he said. He ruled that a delisting order be made. However as Google 'took reasonable care' over the request for delisting the claimant was not entitled to compensation.
A reporting restrictions order prohibiting the publishing of the claimants' identities remains in force.
Data protection experts predicted that the case would lead to more successful requests for delisting. Jon Baines, adviser at London firm Mishcon de Reya, said: 'It seems clear that the courts will judge applications such as this on the specific facts, giving close scrutiny to the nature and sensitivity of the processed data and to the interest of the public in having access to the particular information. It is quite likely that that there will be an increase in the number of successful requests for delisting, as individuals take note of the court's analysis, and assert their strong and potentially enforceable rights to have out-of-date or inaccurate information about them on the internet made more difficult, at least, to find.'
Hugh Tomlinson QC and Jonathan Barnes, instructed by Carter-Ruck, appeared for both claimants; Antony White QC and Catrin Evans QC, instructed by Pinsent Masons, for Google.
Anya Proops QC and Rupert Paines, instructed by in-house lawyers, appeared for the information commissioner.