Google: Class search results as journalism so we can dodge Right To Be Forgotten

High Court hears hair-raising claim from ads behemoth

RTBF Trial Google is claiming that journalistic exemptions from data protection laws should apply to its search results, in the first ever trial of the so-called Right To Be Forgotten in the High Court of England and Wales.

A man who we are only permitted to name as NT1* is suing Google under the Data Protection Act for misuse of private information. NT1 is invoking an EU Court of Justice ruling from 2014. That established a legal right in EU law for individuals to demand that search results about them which are “inadequate, irrelevant or no longer relevant or excessive” are deleted from search engines.

NT1 wants Google to delete three search results about his criminal past, on the grounds that his conviction was almost 25 years ago and is spent under the Rehabiliation of Offenders Act 1974. He has already applied, unsuccessfully, to the national newspapers that published the original articles asking for those to be deleted.

“There is a strong public policy in favour of the rehabilitation of criminal offenders,” NT1’s lawyers told the court in a written submission. His lawyers also argued that news reports of NT1’s criminal conviction and sentencing in the 1990s are inaccurate.

For its part, Google said that section 32 of the Data Protection Act (originally passed to stop wrong’uns from abusing data protection laws to sue newspapers for doing their jobs) ought to apply to its search results, giving it immunity from the right to be forgotten. Even though the 2014 CJEU ruling specifically stated that processing personal data for journalistic purposes “does not appear to be [what happens] in the case of the processing carried out by the operator of a search engine,” Google is actively encouraging the High Court to grant it the same legal status as bona fide news publishing companies.

“It is submitted that the CJEU was not making any finding that the processing carried out by a search engine operator can never be for journalistic purposes,” said Google’s lawyers. “If, in a particular case, Google can rely upon the journalistic processing exemption contained in section 32 of [the Data Protection Act], it will be exempt from liability under the right to be forgotten.” “The concept of journalism in EU law is very broad,” continued Google’s barristers. “It encompasses activities such as the making available to the public of documents and information which are in the public domain.”

NT1’s legal team, led by barrister Hugh Tomlinson QC, was dismissive of this. Tomlinson told the court: “Of course Google isn’t an altruistic or public service [entity], it serves its own economic interest. It’s not in any sense a news or media organisation and doesn’t engage in anything that could be described as journalism.”

Tomlinson also hinted, in broad terms, at the circumstances of NT1’s company’s downfall: “The company didn’t collapse, although it ceased carrying on business as a result of various criticisms that were made of it.”

While we cannot name the company*, the court agreed that reporters could refer to it as Alpha.

Antony White QC, defending Google, said to Mr Justice Warby, the judge: “My lord, the defendant’s case is that for the purposes of the right to be forgotten, spent convictions are not a homogenous category. One important reason for this is that convictions do not always relate to the activities in the offender’s private life.”

He added: “This case is different in that the convictions arose not out of activities in NT1’s private life, but out of activities in his, at the time, very high profile business venture. And our submission will be that spent convictions relating to serious business malpractice, particularly involving businesses which target consumers and investors, are likely to be of continuing relevance, especially where the convicted person is still active in business.”

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