Google to 'forget me' man: Have you forgotten what you said earlier?

To forget, or not to forget? That is the question

RTBF trial The man demanding Google deletes search links to interviews he gave about a criminal offence he committed has been accused of giving “demonstrably false” answers in court by Google’s barrister.

That accusation came during yesterday’s final hearing in the Right To Be Forgotten trial at the High Court in London. Antony White QC of Matrix Chambers, acting for Google, told the court that the man, whom we can only name as NT2*, had sought to “downplay his knowledge” of his crime, which was committed more than a decade ago.

“He did give a demonstrably false answer to my first questions about his knowledge that [the private investigations agency he hired] proposed to use unlawful means,” said White in his summing-up speech to the court. “He only rowed back from that incorrect answer, which is also reflected in his witness statement, when I showed him the agreed basis of plea.”

NT2, as previously reported, wants Google to delete (“delist” in the legal jargon) 13 search results that come up when one searches for his name. Some years ago – we are not allowed* to say precisely when – NT2 was found guilty of conspiracy to intercept communications, a crime relating to his hiring of a dubious private investigations firm for his business. A number of news outlets wrote about his sentencing. Years after that, and before his conviction was spent, NT2 himself gave interviews about his version of the circumstances surrounding his conviction, as well as his business interests of the time.

The 13 results include contemporaneous news reports, the interviews, and an article about a council buying land from NT2.

High Court judge Mr Justice Warby must carry out a balancing exercise, according to EU law, to decide which, if any, of the search results should be deleted. Most of the legal arguments in this case, and the linked case of NT1, boil down to whether Google can claim any of the various exemptions from EU data protection laws, and whether those outweigh NT1 and NT2’s EU-guaranteed rights to privacy. In addition, both NT1 and NT2 also argue the Rehabilitation of Offenders Act 1974 applies to the search results, both of which mention their spent convictions.

Referring to NT2’s version of events from the interviews, White told the judge: “My lord, that spin on the circumstances of his offending presents a misleading picture to the public. That interview by him is still online; it is what he chose to say to the public about the circumstances of his offending. To that extent, it was misleading.”

Google’s barrister continued: “The claimant’s case, reading Mr Tomlinson’s [NT2’s barrister] submissions with care, does somewhat boil down to ‘a spent conviction’s a spent conviction’.”

’Not wholly unrelated but something I want to raise’

The judge, Mr Justice Warby, asked White about a point of law which could have massive repercussions in years to come.

“So if someone is searching under the name [of someone mentioned in the same article as one mentioning NT2’s crime] the Google search will come up with this article. And the reader may come across the information ... about NT2, because it’s there. And the relief that NT2 seeks won’t prevent that.”

Mr Justice Warby continued: “What I was contemplating was where you’d have an article where... suppose you have someone accused of squirrelling away ill-gotten gains from some recent criminal offence, which was not the subject of a rehabilitated conviction, or even a conviction at all. Coupled with, by the way, 25 years ago he was convicted of stealing a crop top from, say, a shop in Barnsley.”

What happens when an article mentions something that was the subject of a right-to-be-forgotten request, even if the mention of that thing was brief and in passing? Should those articles be deleted from Google too?

“It is not wholly unrelated but it is something I wanted to raise,” added the judge.

White replied robustly on behalf of Google: “It is important my lord understands this. In some of the submissions made on the other side [by NT2’s legal team], it appears to be suggested that it only impacts on a search where the search term is the claimant's name. That’s not quite accurate... It results in the delisting wherever the search terms include the claimant's name.”

He also noted that NT2 had at one time appeared on a list of people featured in a current affairs publication, something the barrister said was relevant “to the extent of his role in public life,” adding: “He’s not a corner shop owner in Axminster. He was someone in the public eye to a degree... businessmen in a sense choose to play a role in public life.”

Almost as an aside, Google’s barrister mused: “It is commonly said, in many judgements of the House of Lords and the Supreme Court, that England led the field in free speech and our common law principles are consistent with, and as valuable as, the Article 10 jurisprudence.”

Article 10 of the EU General Data Protection Regulation makes it illegal to process data about criminal convictions unless one has a legal exemption for doing so. Journalists, for now, have an exemption.

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