What was at the heart of the recent High Court judgment against Google (The Times, April 14), which established the right to be forgotten – or more precisely, the right to delisting – in England and Wales?
Mr Justice Warby ordered Google to block search results about a past conviction that came up against a businessman’s name. The conviction is spent, so it falls within the provisions of the 1974 Rehabilitation of Offenders Act, which aims to ensure that ex-offenders do not carry the stigma of past errors for the rest of their lives.
The act has a direct impact on how past convictions are discussed in public and in the media. The introduction to the act explains its purpose: “to rehabilitate offenders who have not been reconvicted of any serious offence for periods of years, to penalise the unauthorised disclosure of their previous convictions, to amend the law of defamation, and for purposes connected therewith.”
So it is not surprising that someone would write to Google asking them to block search results that refer to a spent conviction. Where Google declines to delist the material citing grounds of “public interest”, the options are to invite the Information Commissioner’s Office to review the decision or to go to court. These were the first cases to go to court in this jurisdiction.
The 1974 Act came into force more than 20 years before the internet was even a fringe pastime, let alone a global communications network engaging 47 per cent of humanity. The legislators drafting the bill, and the politicians hastening it through parliament could not have imagined what a search engine was, nor the powerful role that they would come to play in retrieving and disseminating information worldwide.
At the centre of the decision handed down in Court 13 at the Royal Court of Justice was how that act can be applied in the digital age, when everyone can be a publisher and when access to archived information is incomparably easier compared to the tortuous processes researchers faced in the 1970s. The judge observed that the case dealt with “novel questions, which have never yet been considered in this court”.
What is more, the act would have to be considered not just in the context of modern technology, but in the modern legal context as well. It was accepted on both sides – by the claimants’ lawyers as well as Google’s – that the court would need to interpret the law in a way that balanced two sets of competing rights. These are the individuals’ rights in their personal (and private) information, including those deriving from EU data protection law; and the freedom of expression and the right of the public to receive information.
The court ordered Google to delist several links about the businessman that referred to his spent conviction, and recognised the UK’s strong public policy in favour of rehabilitation of offenders. It confirmed that the fact that a conviction is spent “will normally be a weighty factor against the further use or disclosure of information about those matters”. The decision will therefore be encouraging to claimants and to their advisers seeking to bring similar complaints.
It is also clear from Mr Justice Warby’s findings that the present position is fact-sensitive. Not all complainants will be entitled to have links blocked simply because they refer to spent convictions, and a request by a second claimant was denied.
Nevertheless it is interesting that the judge granted permission to appeal that finding, acknowledging that it would be useful to have appellate court guidance in this type of case.
The tension between the rights of individuals and those of internet search engines will continue to be tested, so it is possible that the courts will be delivering further guidance on these complex issues over the years to come.
Dominic Garner is a senior associate at Carter-Ruck.
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