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NT1 & NT2 v Google Pt II: Hiding Criminal Convictions

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About The Author

Connor Griffith (Joint Editor-in-Chief)

Connor is a law graduate from the University of Nottingham with a particular interest in commercial law. He recently completed the combined LLM LPC at Nottingham Law School and is waiting to begin his training contract with a large national firm. Outside the law, he enjoys stand-up comedy and horror books.

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©Carlos Luna

This article is part of the 'Right to be Forgotten and Criminal Convictions' series, edited by Connor Griffith.

The ‘right to be forgotten’ is a necessary but arguably controversial mechanism that received widespread media attention following the judgment of the European Court of Justice in Google Spain [2014]. Recently, the High Court considered the extension of the right so that it applies to past criminal convictions of data subjects. In a two-part series, Connor Griffith considers the reasoning behind Warby J’s decision to extend the already controversial legal mechanism, and the distinction that was made between NT1 (who was unsuccessful in his claim) and NT2 (who was successful).

Other articles from this series are listed at the end of this article.

The recent judgment of the High Court in NT1 & NT2 v Google [2018] pushed an already controversial legal mechanism – the ‘right to be forgotten’ – into untested territories, through its application in relation to the past criminal convictions of applicants. In doing so, Warby J found that one of the two claimants in question was entitled to have links to articles discussing his conviction ‘delisted’ after his name is searched on internet search engines.

This seemingly radical step placed heavy emphasis on the judgment of the European Court of Justice (ECJ) in Google Spain v AEPD [2014], in which it was held that natural persons have – in certain circumstances – a right to be forgotten.

The first article in this Keep Calm Talk Law series discussing NT1 & NT2 [2018] considered what the ‘right to be forgotten’ actually entails and the general duties of data processors in relation to this right. This second article, meanwhile, examines the main body of Warby J’s judgment and explains how the principles that were put forward in, and developed from, the ECJ’s decision in Google Spain [2014] were extended.

An Introduction to the Decision in Google Spain v AEPD

As Chris Bridges has examined in more detail for Keep Calm Talk Law, the ECJ in Google Spain [2014] interpreted Directive 95/46 EC (the Data Protection Directive) and the EU’s Charter of Fundamental Rights (the Charter) in such a way that a qualified right to be forgotten for natural persons could be identified.

The case concerned a Spanish national, who wanted to remove two links on Google Search to an auction notice posted on a Spanish newspaper’s website following his bankruptcy. In his decision in NT1 & NT2 [2018], Warby J summarised how the ECJ reached its decision in Google Spain [2014] as follows:

  • In making information containing personal data published on the internet by third parties available, an entity operating an ISE (internet search engine) is processing personal data for the purposes of the Data Protection Directive. They are therefore a data controller in respect of that processing, and thus subject to the obligation contained within the Data Protection Directive to ensure ‘within the framework of its responsibilities, powers and capabilities’, that the data subject’s rights are protected.
  • There is a ‘right to be forgotten’: a data subject’s fundamental rights under Article 7 and Article 8 of the Charter entitle them to request that information no longer be made available to the general public by means of a list of results displayed following a search made by reference to their name. The data subject’s rights may override the rights and interests of the ISE and those of the general public.
  • Upon application by a data subject, a national authority or court can order the operator under Article 12(b) and/or Article 14(1)(a) of the Data Protection Directive to remove, from search results displayed following a search made on a person’s name, links to web pages published by third parties containing information relating to that person. This may be so, even if that name or information has not been erased beforehand or simultaneously from those web pages, and even where the publication of the information on those web pages is lawful.

The Google Spain Issue

Introducing the Working Party Guidelines

Following the judgment in Google Spain [2014], the ‘Working Party on the Protection of Individuals with regard to the Processing of Personal Data’ published ‘Guidelines on the Implementation of [Google Spain]’. Part II of these Guidelines provides a list of common criteria for the handling of complaints by European data protection authorities, which are to be used as a ‘flexible working tool’ by data protection authorities when confronted with a right to be forgotten application.

When applying the criteria, the data protection authority must undertake a balancing exercise which involves considering the relevant facts of the case in order to decide between delisting and the continued processing of the information in question.

Warby J placed heavy reliance upon these criteria and the prescribed balancing exercise when evaluating the so-called ‘Google Spain [2014] Issue’ in NT1 & NT2 [2018]. Indeed, he made several crucial points about the operation of the balancing exercise. For example, he observed that the:

[B]alancing process in any individual delisting case is ordinarily, as a matter of principle, to be entered into with the scales in equal balance as between delisting on the one hand and continued processing on the other.

Secondly, he pointed out that the criteria given in the Guidelines are ‘expressed to be flexible, non-exhaustive, and liable to “evolve” over time on the basis of experience’. Thus, in his view, it was possible to give consideration to factors not directly referred to within the text of the criteria themselves. On this basis, Warby J felt able to consider that the subsequent business careers and online profiles of both NT1 and NT2 could be relevant factors applicable to the balancing exercise.

Applying the Working Party Guidelines

The Additional Considerations

Warby J in NT1 & NT2 [2018] deemed that three of NT1’s business endeavours following his released from prison were relevant factors to apply when conducting the balancing exercise:

  • His obstruction of an Inland Revenue investigation into his tax affairs
  • His failure to disclose an association with a credit licensee whose licence was revoked when making an application to the Office of Fair Trading
  • His post-business career that consisted of using money from his company (of which NT1 had ‘siphoned off’ several million pounds in a false accounting conspiracy) and taking a further £3m by way of funds previously frozen in Switzerland.

The subsequent business endeavours of NT2, by comparison, seemed much more innocent: since his release, he had not been involved in the same controversial industry as before his conviction. In fact, he had sold his stake in his company and instead developed a livelihood comprising turning around struggling businesses, the letting and sale of property, and sports marketing.

Meanwhile, regarding online profiles, Warby J took into account the fact that NT1 had a reputation management business to ‘create material online that would detract from the negative postings’ about his conviction. As a result, online postings were being made about NT1 which spoke positively about his business experience, standing and integrity. Google alleged that they were ‘thoroughly misleading [and] dishonest’.

NT2, on the other hand, had given two interviews about his conviction. Google claimed these ‘were clearly intended to be used to exculpate any damage caused to the claimant’s reputation by his conviction and guilty plea’ and to create favourable publicity for himself and his business interests. However, the interviews – which did not contain any claims that were inconsistent with the evidence against NT2 – had been given before NT2’s conviction became spent, and NT2 now wished to withdraw his consent for the use of the interviews.

The Criteria in the Guidelines

Warby J’s judgment in NT1 & NT2 [2018] covered a number of criteria that raised interesting questions. For example, Criterion 2 requires consideration of whether the data subject ‘play[s] a role in public life’ and whether they are ‘a public figure’. This is defined broadly in the Guidelines to include ‘individuals who, due to their functions/commitments, have a degree of media exposure’. Warby J held that NT1 (and, later, NT2) was a public figure with a role in public life because he was:

[R]easonably well-known to the public at large as a person who played a leading role in a controversial property business, who was tried, convicted, and sentenced for criminal conspiracy in connection with that business.

It is made clear by the Guidelines that a ‘good rule of thumb is to try to decide whether the public having access to the particular information… would protect them against improper public or professional conduct’.

Taking this into account, Warby J accepted the argument that – as NT1 (and NT2) had been convicted over a decade ago and had not been a public figure since – the public’s need to know about their past to guard against impropriety had ‘gradually weakened over time’. But this was qualified by Warby J’s acknowledgement that, though the information concerned was ‘sensitive’, it was not ‘intrinsically private in nature’: indeed, criminal activity, while having a ‘private aspect in that it [is] undertaken in secret, and [is] not intended for public view’, is ‘not intimate or even personal’.

As a result, Warby J concluded that the information had become – following public prosecution, trial and sentence, and in light of their high-profile statuses – ‘essentially public’, such that the claimants had no reasonable expectation of privacy over the information.

Warby J in NT1 & NT2 [2018] also had regard to Criterion 8. This involves querying whether the data processing was ‘causing prejudice to the data subject’ or whether the ‘data have a disproportionately negative privacy impact on the data subject’.

NT1 and NT2 both alleged several branches of harm. NT1, in particular, claimed to have been caused ‘substantial damages and distress’ from being treated as a social and professional pariah, being threatened with the reveal of his conviction unless money was extracted, and from disruption caused to his family life by the worsening of his relationship with his wife and children. However, little to no evidence was given to prove this; in fact, the bulk of complaint related to NT1’s business reputation, as opposed to familial difficulties.

Warby J was therefore clear that, while such harm could indeed form legitimate factors to be considered in evaluating whether a delisting order should be made, there was no concrete evidence that they had actually happened in this case. Thus, for NT1, it could play no more than a minor role in the larger balancing exercise.

However, as Warby made clear at the commencement of his consideration of the criteria explicitly contained in the Guidelines, the ‘most important criterion in the present case’ was clearly Criterion 13: ‘Does the data relate to a criminal offence?’ The starting point for applying this is the Working Party’s commentary on the Guidelines, which states:

As a rule, [authorities] are more likely to consider the delisting of search results relating to relatively minor offences that happened a long time ago, whilst being less likely to consider the delisting of results relating to more serious ones that happened more recently. However, these issues call for careful consideration and will be handled on a case-by-case basis.

Under English law, this required regard to be had to Section 4 of the Rehabilitation of Offenders Act 1974 (ROA 1974), which provides that a claimant is entitled to be treated for all purposes as a person who has not been charged, prosecuted or convicted of an offence where that conviction is deemed spent. This would suggest that publication of information about that offence could be in breach of Section 4 of the ROA 1974 , as that offence is to be treated as having not happened. Though each case must turn on its own individual facts, the claimants asserted that the fact that the conviction is spent, though not determinative, should certainly be weighty in the balancing exercise.

In considering this argument, Warby J in NT1 & NT2 [2018] concluded that the right to rehabilitation – though forming an aspect of the law of personal privacy – is not unqualified and ‘will come into conflict with rights such as the right to freedom of information and freedom of expression’. Indeed, Section 4 of the ROA 1974 was held to form no more than a ‘blunt instrument’, for which ‘more subtle tools’ were deemed necessary.

Warby J therefore turned to case law to consider the implications of legal proceedings held in public and their impact on Section 4 of the ROA 1974. He noted that while the starting point – as set out by the Supreme Court in Khuja v Times Newspapers Ltd [2017] – should be that a person will not enjoy a reasonable expectation of privacy in the case of public legal proceedings, it was held in R (T) v Chief Constable of Greater Manchester Police [2014] that this may not be the case where the conviction is spent in a way that sees the convict’s rights under Article 8 of the Charter engaged.  

It was made clear in T [2014], however, that this does not mean that Parliament enacted a right to confidentiality or privacy from that point on; instead, the fact that the conviction is spent will merely form a weighty factor against the further use or disclosure of information about those matters. In addition, the particular circumstances of the individual offender may support the application of this general principle, but weighed against any competing free speech or freedom of information considerations that arise.

It is therefore required that a balancing exercise is undertaken which involves considering each case on its facts. Part of this balancing exercise involves an assessment of the nature and extent of any actual or prospective harm that might be caused to the private life or family life of the offender if the information is disclosed or used.

In addition, the nature and quality of any societal benefits to be gained from the use or disclosure of the information in question must be considered. As Warby J made clear in NT1 & NT2 [2018], freedom of expression ‘has an inherent value’, but the fact that the information may be old ‘will play a part at this stage also’.

Final Judgment – The Balancing Exercise

After setting out which criteria and additional consideration would form part of his balancing exercise, Warby J in NT1 & NT2 [2018] went about carrying it out for each claimant. He found that NT2 was entitled to have a delisting order made, whereas NT1 was not.

Warby J gave a long list of factors that contributed towards his decision to refuse NT1’s application for delisting, including:

  • NT1 did not have a reasonable expectation of privacy in respect of the information about his conviction at the time of prosecution, conviction and sentence;
  • The information was not inaccurate in any way and related to his business life, not personal life;
  • Though the information was sensitive – for which there were legitimate grounds for delisting – NT1 had failed to produce compelling evidence in support of those grounds;
  • His business career since leaving prison made the information relevant in the past to the assessment of his honesty by members of the public;
  • NT1 had never accepted his guilt of the original offence and did not show any remorse for his action, as made clear by his own misleading and inaccurate online posting about himself.

By comparison, Warby J’s conclusion as to NT2 was much shorter. He found that the information was out of date, irrelevant and of no sufficient legitimate interest to justify its continued availability on Google Search. Reasons for this included:

  • NT2 had acknowledged his guilt at an early stage and expressed genuine remorse;
  • There was no evidence of any risk of repetition: his current business activities were in a quite different field from that in which he was operating at the time of the offence;
  • His past offending is of little relevance to anybody’s assessment of his suitability to engage in relevant business activity now or in the future;
  • NT2’s offence was not one involving dishonesty;
  • There was no real need for anybody to be warned about NT2’s previous conduct.

Conclusion

It would be unwise to summarise a thorough, well-reasoned judgment into a single principle, not least where that judgment – as was the case in NT1 & NT2 [2018] – reaches 76 pages in length. However, despite this, it seems that a basic distinction can be made that explains the difference in NT1 and NT2’s success: NT2 deserved to have the information delisted, whereas NT1 did not.

While NT2’s conduct was never dishonest at any point and constituted merely a relatively minor offence to which he quickly confessed guilt and showed remorse, NT1 was manipulative, dishonest and unrepentant. Indeed, Warby J’s disapproval for NT1’s action was demonstrated by two pages of his judgment, which are dedicated solely to explaining how poorly NT1 performed throughout the trial.

In essence, NT2 deserved to have the information put behind him as he was no longer the person he was when he committed the offence; in contrast, NT1 was still very much the same person, such that the information stayed completely relevant.

Overall, NT1 & NT2 [2018] represents a fascinating extension of the right to be forgotten over criminal activity. It is of course, however, controversial for this very reason. Following the initial judgment in Google Spain [2014], concerns were raised about how the right to be forgotten will impact free speech. Comedian David Mitchell argued that ‘the right to be forgotten will turn the internet into a work of fiction’, while Michael Rustad and Sanna Kulevska contended that:

[T]he right to be forgotten will lead to censorship of the Internet because data subjects can force search engines or websites to erase personal data, which may rewrite history.

It is submitted, however, that such claims are hyperbolic: as the first article in this series made clear, the ‘right to be forgotten’ does not remove the information from the internet, but instead simply delists from the results given on internet search engines. Despite the delisting order, information of NT2’s conviction can still be found. History is not being rewritten; the criminal record still exists.

In addition, as pointed out by law firm Brett Wilson LLP, NT1 & NT2 [2018] does not represent a finding that ‘URLs about criminal convictions should be [automatically] delisted at the point the conviction becomes spent’. Rather, it demonstrates that applications for delisting in such cases may, where deserving, be successful.

And ultimately, if such an application is found to be successful (which – as the difference in outcomes of NT1 and NT2’s claims shows – is not an easy task), it follows that it is likely that the applicant does deserve to have the information in question delisted.

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Tagged: Data Protection, Privacy Law, Technology, The GDPR

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