UK Court decides against Google on ‘right to be forgotten’
NT1 and NT2 v Google LLC and Another [2018] EWHC 799 (QB)
Court: High Court of Justice (Queen’s Bench Division)
Date of judgment: 13 April 2018
The High Court of Justice (Queen’s Bench Division) (the Court) has recently considered two claims against Google to have search results de-listed. The claims were brought against Google LLC (Google) by two businessmen who were convicted of criminal offences many years ago. The claimants argued that the search results on Google’s internet search engine, which featured links to third-party reports about the claimants’ convictions, conveyed inaccurate information about them. The claimants sought orders requiring details about their offences, convictions and sentences to be removed from Google search results, on the basis that such information was old, out of date, irrelevant, of no public interest and/or otherwise an illegitimate interference with their rights.
In the judgment, the claimants were anonymised to ensure that the judgment did not give the information at issue the very publicity that the claimants sought to limit. The first claimant was referred to as ‘NT1’ and the second claimant as ‘NT2’. In the case of NT1, the claimant had been involved in a controversial property business that dealt with members of the public in the late 1980s and early 1990s, and was convicted of a criminal conspiracy related to that business. In 2014, NT1 requested the removal of six links from Google; in response, Google agreed to block one, but declined to block the other five. The following year, NT1 requested that Google stop processing links to two media reports, which was also refused by Google. In October 2015, NT1 instituted proceedings against Google seeking orders for the blocking and/or erasure of links to the two media reports, an injunction to prevent Google from continuing to return such links, and financial compensation.
In the case of NT2, the claimant was involved in a controversial business that was the subject of public opposition over its environmental practices. NT2 pleaded guilty to two counts of conspiracy in connection with that business, and received a short custodial sentence. The sentence came to an end over ten years ago. NT2’s conviction and sentence have also been mentioned in some more recent publications about other matters, two of them being reports of interviews given by NT2. The first de-listing request by NT2 to Google was made in April 2015 regarding eight links. Google declined the request, stating that the links in question “relate to matters of substantial public interest to the public regarding [NT2’s] professional life”. NT2 thereafter instituted court proceedings against Google, adding a further three links and claiming the same relief as NT1.
As explained by the Court: “The main issues in each case, stated broadly, are (1) whether the claimant is entitled to have the links in question excluded from Google search results either (a) because one or more of them contain personal data relating to him which are inaccurate, or (b) because for that and/or other reasons the continued listing of those links by Google involves an unjustified interference with the claimant’s data protection and/or privacy rights; and (2) if so, whether the claimant is also entitled to compensation for continued listing between the time of the delisting request and judgment. Put another way, the first question is whether the record needs correcting; the second question is whether the data protection or privacy rights of these claimants extend to having shameful episodes in their personal history eliminated from Google search; thirdly, there is the question of whether damages should be paid.”
Decision on NT1: The crux of NT1’s case was that there had been a breach of the principle that personal data shall be accurate. The Court rejected all six complaints of inaccuracy, on the basis that NT1 had failed to provide all the information needed to establish that the data is evidently inaccurate. The Court held that NT1 did not enjoy any reasonable expectation of privacy in respect of the information at the time of his prosecution, conviction and sentence, and therefore was not entitled to have it delisted now. The Court noted that NT1 still played a role in public life (albeit a limited one). The Court stated further that the information retained sufficient relevance today and served the purpose of minimising the risk that he will continue to mislead as he has in the past, taking into account that NT1 had not accepted his guilt, had misled the public and the Court, showed no remorse over any of these matters, and remained in business. Accordingly, the claim to de-list was rejected.
Decision on NT2: In respect of NT2’s case, the Court upheld the claims of inaccuracy, and found that the crime and punishment information had become out of date, irrelevant and of no sufficient legitimate interest to users of Google to justify its continued availability. Unlike with NT1, the Court held that NT2 had a reasonable expectation of privacy, with the presence of a young family in NT2’s life being a distinguishing factor. Accordingly, the Court held that a de-listing order was indeed appropriate, although it did not grant NT2’s claim for compensation.
The full judgment is accessible here.
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