Friday, 20 April 2018

Right to be Forgotten - NT1 and another v Google

Royal Courts of Justice
Author Rafa Esteve
Licence Creative Commons Attribution Share Alike 4.0 International
Source Wikipedia

Jane Lambert

Queen's Bench Division (Mr Justice Warby) NT 1 and NT 2 v Google LLC [2018] EWHC 799 (QB) (13 Apr 2018)

These were claims by two businessmen known respectively as NT1 and NT2 against Google LLC.  Both claimants had been  convicted of criminal offences but, as their convictions had been spent, they sought orders requiring details of their offending, convictions and sentences to be removed from Google's search results on the grounds that the information was inaccurate, old, out of date, irrelevant, of no public interest, and/or otherwise an illegitimate interference with their human rights. The claimants also sought compensation from Google for continuing to return search results disclosing such details, after those complaints had been brought to its notice. The actiod to block one link on 7 Oct 2014 but declined to block any of the others. NT1 asked Google to reconsider his request, but Google stood by its position. On 26 Jan 2015, NT1's solicitors wrote to Google requiring it to cease processing links to 2 media reports. In April 2015, Google refused. NT1 brought these proceedings on 2 Oct 2015 seeking orders for the blocking and/or erasure of links to the 2 media reports, an injunction to prevent Google from continuing to return such links, and financial compensation. In December 2017, NT1 expanded his claim to cover a third link, relating to a book extract covering the same subject-matter, in similar terms.

NT2's Claim
His lordship summarized NT2's claim at para [7]:
"In the early 21st century, when he was in his forties, NT2 was involved in a controversial business that was the subject of public opposition over its environmental practices. Rather more than ten years ago he pleaded guilty to two counts of conspiracy in connection with that business, and received a short custodial sentence. The conviction and sentence were the subject of reports in the national and local media at the time. NT2 served some six weeks in custody before being released on licence. The sentence came to an end over ten years ago. The conviction became "spent" several years ago. The original reports remained online, and links continued to be returned by Google Search. NT2's conviction and sentence have also been mentioned in some more recent publications about other matters, two of them being reports of interviews given by NT2. In due course, NT2 asked Google to remove such links."
NT2's solicitors submitted a delisting request on 14 Apr 2015. It related to 8 links. Google responded promptly by email, on 23 Apr 2015 declining to delist, saying that the links in question "relate to matters of substantial public interest to the public regarding [NT2's] professional life". On 24 June 2015, NT2's solicitors sent a letter of claim. On 2 Oct 2015 they issued proceedings, claiming relief in respect of the same 8 links as NT2. In the course of the proceedings, complaints about a further 3 links were added to the claim. The claim advanced by NT2 therefore relates to 11 items.

The Issues
The judge summarized the issues in dispute in each case as follows at para [9]:
"(1) whether the claimant is entitled to have the links in question excluded from Google Search results either
(a) because one or more of them contain personal data relating to him which are inaccurate, or
(b) because for that and/or other reasons the continued listing of those links by Google involves an unjustified interference with the claimant's data protection and/or privacy rights; and 
(2) if so, whether the claimant is also entitled to compensation for continued listing between the time of the delisting request and judgment."
His lordship added:
"Put another way, the first question is whether the record needs correcting; the second question is whether the data protection or privacy rights of these claimants extend to having shameful episodes in their personal history eliminated from Google Search; thirdly, there is the question of whether damages should be paid."
The judge noted at para [10] that these were novel questions that had never been considered by the courts. They arose in a legal environment which was complex and had developed over time.

The Legal Framework
At para [13] of his judgment Mr Justice Warby set out the legal framework:
  1. The European Convention on Human Rights ("the Convention") and in particular art 8 and art 10;
  2. S.3 (1) of the European Communities Act 1972 requiring courts in the UK to make decisions on matters of EU law in accordance with decision of the Court of Justice of the European Union ("CJEU");
  3. The Rehabilitation of Offenders Act 1974 which provide for certain convictions to be spent after specified periods of time;
  4. The Data Protection Directive and in particulars arts 2, 6, 8, 9, 12, 14, 23 and 29;
  5. The Data Protection Act 1998 and its implementing regulations;
  6. The Human Rights Act 1998 which imported the Convention into English law;
  7. The decisions of the House of Lords in Campbell v MGN Ltd [2004] AC 457, [2004] EMLR 15, [2004] 2 AC 457, [2004] UKHRR 648, [2004] 2 All ER 995, [2004] HRLR 24, [2004] UKHL 22, 16 BHRC 500, [2004] 2 WLR 1232 and Re S (a child) [2004] UKHL 47, [2004] 3 WLR 1129, [2004] 4 All ER 683, [2004] 3 FCR 407, [2005] AC 593, [2005] HRLR 5, 17 BHRC 646, [2005] EMLR 2, [2005] Crim LR 310, [2005] 1 FLR 591, [2005] EMLR 11, [2005] 1 AC 593, [2005] UKHRR 129;
  8. The Charter of Fundamental Rights of the European Union (OJ 18.12.2000 C 364/1);
  9. The decision of the CJEU in C-131/12 Mario Costeja Gonzalez v Google Spain and another EU:C:2014:317, [2014] 3 WLR 659, [2014] EUECJ C-131/12, [2014] All ER (EC) 717, [2014] EMLR 27, [2014] 3 CMLR 50, [2014] ECDR 16, [2014] 2 All ER (Comm) 301, ECLI:EU:C:2014:317, [2014] 1 QB 1022, 36 BHRC 589, [2014] QB 1022; and
  10. The General Data Protection Regulation ("CDPR") and in particular art 17.
NT1's Contentions
NT1 contended that Google was a "data controller" within the meaning of s.1 (1) of the Data Protection Act 1998 and that it owed him a duty under s.4 (4) to process data relating to him in accordance with the "data protection principles" as set out in Sched. 1 to the  Act.  He complained that Google had breached the 1st, 4th, 5th and 6th principles:
"1.  Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless
(a)   at least one of the conditions in Schedule 2 is met, and
(b)   in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.
4.   Personal data shall be accurate and, where necessary, kept up to date.
5.   Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.
6.   Personal data shall be processed in accordance with the rights of data subjects under this Act."
NT1 alleged that Google had breached the 4th data protection principle by linking to 6 articles that contained inaccuracies.  In the alternative he argued that linking to those articles breached one or more of the other principles.

Google's Response to NT1
Google admitted that it was a data controller, that it owed a duty to comply with the data protection principles, that there were inaccuracies in the 6 articles and that it had to balance the interests of the data subject against those of public in accordance with the CJEU's judgment in the Google Spain case but offered the following three-pronged defence.  First, it argued that NT1's claim was an abuse of the process of the court on the ground that NT1 was using the Data Protection Act 1998 to obtain relief for damage to reputation that would be unavailable in defamation proceedings by reason of s.8 of the Rehabilitation of Offenders Act 1974.  Secondly, it contended that it had carried out properly the balancing exercise prescribed by the CJEU in Google Spain.  Thirdly, it relied on s.32 of the 1998 Act which provides a limited exemption for journalistic purposes.

The Judgment on NT1's Claim
Though he rejected Google's abuse of process argument and its journalistic purpose defence, Mr Justice Warby found for Google,

As to the abuse of process argument, his lordship agreed that NT1 had brought this action in order to protect his reputation but he was also relying on the CJEU's decision in Google Spain. He accepted NT1's submission that "the Court should not be too liberal in its labelling of prejudice as 'injury to reputation', lest it undermine the Google Spain regime."

He rejected the s.32 defence on the ground that Google's processing of personal data was not only for journalistic, literary or artistic purposes as required by s.32 (1).  Google was a search engine and as such it processed personal data for all sorts of purposes.  Secondly, s.32 (1) (b) and (c) required "reasonable belief" on Google's part that publication would be in the public interest and that complying with the data protection principles would be incompatible with the journalistic, literary or artistic purposes. The judge could find no evidence that Google had given any thought to the public interest.

At paragraph [93] of his judgment, the judge considered whether the 4th data protection principle had been breached.  He found a few inaccuracies in the articles to which NT1 objected but they were not so serious as to give a false impression of the crimes of which he had been convicted.  Some of NT1's complaints had been insufficiently pleaded.  Other complains were not supported by the evidence.  Even where there were inaccuracies the judge was not persuaded to make any of the orders sought or to award compensation.

As to the other alleged breaches his lordship held that the public interest outweighed the case for delisting. He explained his reasoning at para [170]:
"The information retains sufficient relevance today. He has not accepted his guilt, has misled the public and this Court, and shows no remorse over any of these matters. He remains in business, and the information serves the purpose of minimising the risk that he will continue to mislead, as he has in the past. Delisting would not erase the information from the record altogether, but it would make it much harder to find. The case for delisting is not made out."
For much the same reason he held that the public interest outweighed NT1's reasonable  expectation of privacy under art 8 of the Convention.

The Judgment on NT2's Claim
Although the issues in his case were much the same as in NT1's, NT2 impressed the judge as "an honest and generally reliable witness who listened carefully to the questions put to him, and gave clear and relevant answers." The one article, or item, of which the claimant complained was not a contemporary report of the conviction or sentencing. It had appeared in a national newspaper over 8 years after NT2 had been sentenced.  The judge found at para [190] that the article was inaccurate and gave a misleading complaint as to the claimant's criminality. Because of the inaccuracy the judge was prepared to make a delisting order.

After performing the Google Spain balancing exercise, the judge concluded at [223]:
"My key conclusions in respect of NT2's delisting claim are that the crime and punishment information has become out of date, irrelevant and of no sufficient legitimate interest to users of Google Search to justify its continued availability, so that an appropriate delisting order should be made. The conviction was always going to become spent, and it did so in March 2014, though it would have done so in July of that year anyway. NT2 has frankly acknowledged his guilt, and expressed genuine remorse. There is no evidence of any risk of repetition. His current business activities are in a field quite different from that in which he was operating at the time. His past offending is of little if any relevance to anybody's assessment of his suitability to engage in relevant business activity now, or in the future. There is no real need for anybody to be warned about that activity."
As to whether NT2 had a reasonable expectation of privacy under art 8 of the Convention, Mr Justice Wardle  said at [226]:
"The impact on the claimant is such as to engage Article 8. The business prejudice does not suffice for that purpose, but there is just enough in the realm of private and family life to cross the threshold. The existence of a young, second family is a matter of some weight. Even so, the evidence does not, in the end, demonstrate a grave interference. But it is enough to require a justification. Google's case on relevance is very weak. The claimant's evidence suggests that he has acknowledged his past error. The claimant's current and anticipated future business conduct does not make his past conduct relevant to anybody's assessment of him, or not significantly so. Continued accessibility of the information complained of is hard to justify. The factors that go to support that view are weak, by comparison with those that weigh in favour of delisting."
Though the judge decided to make a delisting order he was not persuaded to award compensation as he considered that Google had acted with reasonable care in dealing with NT2's request.

These are two cases with very similar issues and arguments but significantly different facts  NT2's wrongdoing was of a lesser order than NT1's. He had expressed contrition. The article of which NT2 complained had been inaccurate and misleading whereas those of which NT1 complained were not.  Unlike NT1, NT2 was trying to rebuild his life in a different business  where there was no danger of his repeating his wrongdoing. He was therefore reasonably entitled to privacy.  That is why the balance tipped in NT2's favour but not NT1's.

The judgment is useful in that it lists the authorities to which the court will have regard in future cases and the methodology to be applied in Google Spain cases.  Save that courts will cease to consider the Data Protection Directive and the Data Protection Act 1998 as part of the legal framework after 25 May 2018 the approach to issues of this kind will probably be the same under the GDPR.

Finally, Mr Justice Wardle's decision has been widely reported as a defeat for Google (eg Google loses "right to be forgotten" case 13 Apr 2018), that is not completely true. Google was completely successful in NT1's case and resisted the claim for compensation in NT2's.

Should amplification or clarification be required, call me on 020 7404 5252 during office hours or send me a message through my contact form.

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