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UK High Court Hands Win To Claimant In Right To Be Forgotten Case

The UK High Court has handed down a win (and a loss) in the Right to be Forgotten column. Two plaintiffs seeking delisting of information about their past criminal exploits had their cases considered by the court. Only one of them is walking away with a court order for delisting. The other one will apparently have to live with his past.

The claimant who lost, referred to only as NT1 for legal reasons, was convicted of conspiracy to account falsely in the late 1990s; the claimant who won, known as NT2, was convicted more than 10 years ago of conspiracy to intercept communications. NT1 was jailed for four years, while NT2 was jailed for six months.

Granting an appeal in the case of NT1, the judge added: "It is quite likely that there will be more claims of this kind, and the fact that NT2 has succeeded is likely to reinforce that."

Google disputed both of these claims when they were filed, prompting the legal challenges. While the court admits there's a public interest in both cases, only one of the two claimants apparently deserves to have his history wiped clean. NT2 was more of a model citizen and convicted on lesser charges, so that's where the line is being (vaguely) drawn in enforcing the European Union's Right To Be Forgotten. The summary [PDF] of the decision quickly details the merits of NT2's case.

The crime and punishment information has become out of date, irrelevant and of no sufficient legitimate interest to users of Google Search to justify its continued availability, so that an appropriate delisting order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.

In comparison, NT1 has apparently learned nothing from his brush with the justice system, and headed right back into the professional field where he committed his original crimes.

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.

NT1's sentence has also been served, but the court -- while nodding its head toward fresh starts after repaying debts to society -- determines NT1 only paid his debt begrudgingly and benefited from an interim law change that saw him released ahead of schedule.

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.

It's a bit of an inconsistent decision, but probably about as much as can be expected from a European ruling that says certain people can erase their pasts while others are doomed to repeatedly be disappointed with their vanity search results. At least this ruling shows challenged requests are being examined on a case-by-case basis weighing as much relevant information as possible. This is what Google is attempting to do as well, even though it has less outside info to work with and more than a half-million requests per year to work through. That Google appears to be operating in good faith despite its obvious opposition to the new "right" likely explains the court's refusal to award damages to the prevailing party.

The recently-established right is still problematic and prone to abuse. But this decision shows the courts aren't viewing search engines as towering, villainous money machines hellbent on ruining lives through algorithmic indexing. Instead, this court appears to be willing to engage all sides of the issue when addressing claimants' complaints about troublesome search results.



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Thursday, 19 April 2018

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