You gotta fight for your right (to be forgotten!)

Being forgotten is a strange thing to strive for. After all, many thousands of people throughout history have achieved incredible feats in an effort to be remembered. However, in a world where everyone (from a future employer to your mother-in-law) can carry out a simple Google search on your name, the ability to have certain parts of your past expunged can be attractive.

The desire to ‘curate’ what comes up on Google when others search for your name is certainly understandable. However, were Google (or the law) to allow individuals full control over what does (and doesn’t) appear amongst their Google search results this would defeat the object of “Googling” someone in the first place. A balance must be struck between protecting the individual’s human rights (in particular the right to a private and family life) and the right of the general public to access information in the public domain.

This article will examine the recent High Court “right to be forgotten” decision in NT1 and NT2 v Google LLC, where two people asked Google to remove search results relating to their criminal pasts.

The Google case concerned two (unconnected) businessmen. NT1 had been sentenced to four years imprisonment in the ‘90s in relation to “a controversial property business that dealt with members of the public”. NT2 had pleaded guilty to conspiracy involving unlawful investigation methods relating to his involvement in “a controversial business that was the subject of public opposition over its environmental practices”. He received a short custodial sentence. Both men had asked Google to de-list the press stories which were published at the time of their convictions and sentencing, and subsequently. When Google refused, NT1 and NT2 brought claims against Google, which were then combined to form the Google proceedings.

The Court rejected NT1’s claim. The data NT1 was asking to have removed related to crimes committed by him in the course of his business. Given the nature of NT1’s crime, the fact that he continued to deny his guilt, showed no remorse and was still in the same line of business, the Court found that the information should continue to be available so as to reduce the risk that he would continue to mislead the public as he had done in the past.

NT2’s claim, however, was upheld. Crucially, NT2 admitted his guilt and “expressed genuine remorse” and was no longer operating in the same field that he was at the time. The Court found that information of his crime and punishment had “become out date, irrelevant and of no sufficient legitimate interest to users of Google Search to justify its continued availability”.

What does this mean for you?

For most people, bringing High Court proceedings against Google for removal of a damaging link will not be cost effective. The wider legacy of this case will therefore be determined by Google’s attitude toward removal requests; it may be that Google are now more willing to remove articles which fall within the realms of NT2’s position.

Where an individual has historically pleaded guilty to an offence and the conviction is now ‘spent’ these are factors which should be highlighted when asking Google to remove items from search results. This case seems to suggest that protesting one’s innocence (particularly where the risk of further offending exists) is not the best tactic.

Google is not the only source of information available to future employers. In some occupations (for example, those involving working with children) a Disclosure and Barring Service (DBS) check will be carried out on individuals before they take up employment. For information about challenging the inclusion of information on a DBS certificate, please see our article here.

If you have any questions about making a right to be forgotten request, please contact myself, Mike or Polly in our Litigation & Dispute Resolution Team.

Note: the content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.