The right to be forgotten a right to be earned?

17th May 2018 Media Law

As many of us increasingly live our lives online, we may worry about what other people can find out about us through a simple internet search.

What happens if we want to remove information on the internet relating to an 'old' criminal conviction? This question was considered last month in the UK's first ever court case on the 'right to be forgotten': the cases of NT1 and NT2 v Google.

Put simply, the 'right to be forgotten' concerns whether we as individuals are entitled to request that search engines - such as Google or Bing must remove search results relating to certain information about us.

The claimant in NT1 brought a claim against Google for the removal of search results relating to articles about his previous convictions, which dated back to the 1990s. The NT2 case concerned similar issues; the individual sought a court order requiring Google to remove search results relating to articles about an offence he had pleaded guilty to over ten years ago.

The High Court handed down a joint judgment for the two individuals, whose names were not revealed in order to protect their identity. The Court held that NT1 was not entitled to an order that Google must remove the relevant search results. The judge placed considerable weight on the fact that NT1 had been convicted of a serious dishonesty offence, and that he still showed no remorse about his actions. The fact that NT1 remained in business meant that the judge thought it important that the information remained available, as it 'serves the purpose of minimising the risk that he will continue to mislead'.

However, the Court held that NT2 was entitled to an order that Google must remove the relevant search results. The Judge concluded that the information relating to NT2's conviction had become out of date and irrelevant. The Judge observed that NT2 had expressed remorse for his actions and that there was no risk of him repeating the crime, as he was now working in a completely different field.

These different outcomes show that the 'right to be forgotten' is not a given, and that a person's behaviour after their official 'rehabilitation' will be taken as relevant in deciding whether they are deserving of this right. However, the judgment also shows that the law will provide redress for those individuals whose lives are being undeservedly blighted by a conviction that is now water under the bridge and irrelevant.

This year, new data protection laws will be coming into force in the form of the General Data Protection Regulation ('the GDPR'). Article 17 of the GDPR provides for a right to request 'erasure' of data which is essentially the 'right to be forgotten'. Even though there are still circumstances where search engines will not be required to erase their data for example when exercising their right to freedom of expression this new law represents the entrenchment of the 'right to be forgotten' principle directly into UK legislation.

It is not yet clear what weight the NT1 and NT2 cases will be given once claims for the 'right to be forgotten' are brought under GDPR rules. However, the case remains an important first step and it will be interesting to see how the law in this area develops in the next few years.

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Nick McAleenan is a Partner located in Manchester in our Media & Reputation Management; Data Protection & Privacy department

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