23. April 2018
The High Court has considered the applications of two individuals to have links to details of previous criminal convictions removed from google search results. One application was upheld, the other was dismissed.
The confirmation of a right to be forgotten online where information is inaccurate or out of date, provided it is not in the public interest to retain the information, was established by the CJEU ruling in the Google Spain case. The Google Spain case also requires the Court to strike a fair balance between fundamental rights and interests, including the right to privacy, freedom of expression and freedom of information.
The High Court has handed down judgment in a case involving applications by two individuals to have search results delisted which link to information about their criminal convictions. One application was upheld, the other was dismissed.
This is the first significant judgment in the UK to deal with the impact of the 2014 Google Spain case and, as such, provides some guidance as to the approach the courts will take when conducting analysis of competing rights where data erasure is requested. It is worth remembering that after 25 May 2018, applications of this nature will most likely seek to rely primarily on the Article 17 GDPR right to erasure. Elements of the Google Spain case and its application are, however, likely to remain relevant, for example its discussion of data subject rights under Articles 7 and 8 of the EU Charter on Fundamental Rights.
NT1 was convicted of a criminal conspiracy to account falsely in relation to the activities of a property business which dealt with members of the public. NT1 was sentenced to four years' imprisonment. His claim related to three links appearing in google search results giving information about the conviction.
NT2 was sentenced to six months following a conviction for conspiring to intercept communications. His claim related to 11 source publications.
The claims were made under UK data protection law and the tort of misuse of private information. The High Court recognised ten key relevant elements of law including the Google Spain decision, the Rehabilitation of Offenders Act, the Data Protection Act (in particular the right to blocking and erasure) and Article 17 of the GDPR (not yet in force).
The Court said that the balancing exercise required by Google Spain is "not a stand-alone exercise, separate from the question of compliance with the DPA. Nor is it to be carried out in accordance with the GDPR which is not yet in force…It is an integral part of deciding whether Google's activities have been and are being carried out in accordance with its duties under the DPA….The processing in this case complies with DPA Schedule 3 condition 5. The question of whether the processing complies with the other requirements of the DPA collapses into the application of the Google Spain balancing test and is not separate or distinguishable from it". The Court relied on the Article 29 Working Party guidance on implementation of the Google Spain decision when carrying out the balancing test.
The Court placed particular emphasis on the fact that the data in both cases related to a criminal offence and on the extent to which such information remained relevant today.
These were summarised as being:
Broken down further, the data protection claims were defined as consisting of two heads:
The misuse of private information issues where summarised as:
The Court also looked at liability and at whether, as Google claimed, the claims were an abuse of process, as well as at defamation issues.
The length of the judgment (66 pages), demonstrates the complexity of the questions raised.
The first claim by NT1 was dismissed. The judge held that:
The second claim by NT2 was upheld. While the Court ruled along the same lines when dismissing Google's argument that the claim was an abuse of process and that it could rely on the journalistic exemption, it held that:
As there was no misuse of private information, no compensation was awarded, Google having successfully established that it took reasonable care. A delisting order will be made.
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