RTBF trial A businessman has won the first ever “right to be forgotten” lawsuit against Google in London’s High Court – but a second man’s attempt to have embarrassing search results about him deleted has failed.
The two pseudonymised men were referred to as NT1 and NT2 during the trial and in today’s judgment, delivered by High Court judge Mr Justice Warby at London’s Royal Courts of Justice this afternoon. Both had sued Google under data protection laws demanding that search results including references to past criminal convictions be erased.
NT1 was found guilty of conspiracy to account falsely in the late 1990s and was jailed, following his involvement with an occasionally controversial property business that dealt with members of the public. He demanded the deletion of three search results that mentioned his conviction.
Similarly, NT2 was involved in “a controversial business that was the subject of public opposition over its environmental practices” in the early part of this century – and the public opposition attracted significant media coverage. He was also sentenced to prison, spending six weeks in custody before being released on licence. Significantly, NT2 also gave media interviews about his criminal activities after his release.
Both men made their claims under British and EU data protection laws. Their grounds for demanding the deletion of the search results were that some of the results were allegedly inaccurate, while all of them were in breach of the so-called Right To Be Forgotten, established after an EU court ruling in 2014 that a Spanish man was entitled to have search results about his criminal past deleted.
Dismissing NT1’s application to have the search results deleted, Mr Justice Warby ruled:
The crime and punishment information is not information of a private nature. It was information about business crime, its prosecution, and its punishment. It was and is essentially public in its character. 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.
The judge also said while delivering his judgment that NT1 had “misled” the court during proceedings.
However, the dice rolled the other way for NT2, who won his effort to have the search results about him deleted. Mr Justice Warby ruled that one of the results, a national newspaper story, was “out of date, irrelevant and of no sufficient legitimate interest to users of Google Search to justify its continued availability, so that an appropriate delisting order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… 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.”
Google argued that both cases were effectively libel claims brought through the back door of data protection law and were therefore an abuse of process, something Mr Justice Warby dismissed. The judge also threw out Google’s efforts to rely on the journalism exemption in section 32 of the Data Protection Act, in which the search engine tried claiming that the provision of search results is a journalistic endeavour.
Mr Justice Warby also observed that neither NT1 nor NT2 were “… asking to ‘be forgotten’. The first aspect of their claims asserts a right not to be remembered inaccurately.”
In a statement handed out outside Court 13 of the Royal Courts of Justice, Carter-Ruck, solicitors for both NT1 and NT2, said: “The decision should cause Google to put into place improved reviewing processes of de-listing requests received by it.” Carter-Ruck added that it is working with a charity, Unlock, “in relation to affected individuals with spent convictions.”
A reporting restriction order is in force that bans the naming of either NT1 or NT2, the identification of the businesses they were involved with or identification of the news stories about them. At this early stage neither side has made an appeal.
The Register will be analysing the full judgment and its implications in due course. ®