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April 19, 2018

Google’s ‘right to be forgotten’ defeat poses new questions for HNWs

By Spear's

Businessman NT2’s win against the search giant in a recent case is welcome news for those wanting to put their past behind, but HNWs still have to be wary of blurred lines in this landscape, writes Jennifer Agate

In a High Court case with important implications for high profile and high net worth individuals seeking to improve their online reputation, a businessman has succeeded in legal proceedings brought against Google under the ‘right to be forgotten’. The decision means that search engines can now be expected to delist details of certain historic convictions on request, for example (as seen in this case) where the nature of the conviction includes dishonesty and a risk of reoffending.

As most readers will now be familiar, the concept of the ‘right to be forgotten’ arises out of an ECJ ruling in 2014 colloquially known as Google Spain, that ruling having been the subject of much criticism for its lack of clarity. The case established that in certain circumstances, links to irrelevant and outdated data should be delisted on request from searches within the EU, ‘irrelevant’ including ‘out of date’.

Until now, criminal convictions have generally been treated as being so much in the public interest, that they would rarely become ‘irrelevant‘ for data protection reasons. So if a conviction was newsworthy enough to have made it onto the internet, those archives would be easily searchable forevermore. The information would not only remain findable by business acquaintances, friends and prospective lovers. So long as the individual remained newsworthy, the press could find and report on that information (the issue of spent convictions aside, which is another article in itself).

Thanks to a High Court decision handed down on Friday, 13 April 2018, the position on criminal convictions has been clarified. The claimant, a businessman known only as NT2, was convicted over ten years ago of conspiracy to intercept communications and sentenced to six months’ imprisonment. After experiencing press coverage over several years, he appealed to Google to delist various articles from its search results.  Google refused the request and NT2 initiated proceedings under data protection and misuse of private information.

In finding for NT2, the judge’s key conclusion was that information on his crime and conviction had now become ‘out of date, irrelevant and of no sufficient legitimate interest to users of Google search to justify its continued availability’. There could, he added, be no ‘plausible suggestion’ of any risk that the crime would be repeated by the claimant.  Information as to the conviction was therefore of ‘scant if any’ relevance to his future business activities.

However while NT2’s claim was successful, another businessman was not so lucky.  NT1, described as a businessman playing a ‘limited role in public life”, brought a similar claim in tandem to NT2. He had been convicted in the late 1990’s of the more serious offence of false accounting, for which he was sentenced to four years’ imprisonment.  In contrast to NT2, NT1, the judge said, ‘has not accepted his guilt, has misled the public and this court, and shows no remorse over any of these matters’. He added that, ‘…the information serves the purpose of minimising the risk that he will continue to mislead, as he has in the past’.

The key differentiator between the two claims appears to have been the element of dishonesty in the crimes and the perceived risk of reoffending, as well as the conduct and business activities of the two businessmen since their convictions.  However the court also noted that the information complained of by NT1 related to his business life, rather than his personal life, implying that a different approach might be taken in relation to more private information.

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The decision means that going forward, individuals seeking to put their past behind them (or at least behind Google searches) can expect their ‘right to be forgotten’ requests to be looked at more favourably. The tactical use of data protection is ever evolving, so continue to watch this space!

Jennifer Agate is a Senior Associate at Foot Anstey LLP specialising in Reputation Management and Media Law

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