Will Google forget my conviction? The right to be forgotten and criminal convictions

For potential employers, colleagues, clients or new acquaintances, an online search is generally the starting point for finding information about you.  As a result, the presence of negative press or social media coverage in the search results for your name can have serious consequences.  For example, a number of people who have come to us concerned about their search results, have missed out on a job or been forced to have tricky conversations with new friends due to the availability of webpages relating to a criminal conviction in their past.  This can feel particularly unfair when their conviction is ‘spent’ (i.e. they are considered in law to be rehabilitated and do not normally need to disclose them when making job applications) and the search results prevent them from moving on.

In these circumstances, ‘right to be forgotten’ requests can be of considerable benefit.  In this article, we set out what right to be forgotten requests are, how the right applies in the context of criminal convictions, and how you can utilise these requests to improve your online reputation.

What is the right to be forgotten?

In the context of search engine results, the right to be forgotten is the right to compel a search engine such as Google, Bing and Yahoo to ‘delist’ (i.e. remove) webpages/URLs from search results for your name, where the information contained in those webpages is irrelevant, outdated, inaccurate or otherwise unlawful.

The right to be forgotten was codified in statute law in May 2018 when the General Data Protection Regulation (‘GDPR’) and Data Protection Act 2018 came into force.  However, its origins data back to the landmark decision in Google Spain SL, Google Inc. v Agencia Espanola de Proteccion de Datos (AEPD) and Mario Costeja Gonzalez (Case C-131/12) (European Court of Justice), where Google was held to be a data controller and told that it needed to comply with data protection principles when operating its search engine.  In short this means that the search results that appear against an individual’s name need to be accurate, relevant and fair.

Where a search engine delists a URL, the underlying webpage will remain on the internet, but the URL will not appear in search results for your name.  As Google accounts for about 92% of UK searches, a successful delisting from its platform means that people looking for information about you are far less likely to come across the webpage of concern.

Whilst a successful delisting request can mitigate the harm of damaging webpages, it is not a complete cure.  It is impractical to target all search engines (the only other meaningful player is Bing with about 6%) and Google will only delist URLs from search results within the UK and Europe (and outside of the country the request is made from they will only delist from EU/UK versions of the search engines), so people accessing the search engine from outside the region will still be able to view the URLs in search results for your name.  The European Court of Justice has endorsed this approach, declining to order worldwide delisting (see our article here on the scope of delisting).  It is also important to note that Google only delists the specific URLs it has been provided with.  If a website’s structure changes or further similar stories are published, then a follow-up request will need to be submitted to Google.  Thus, ongoing monitoring of search results (e.g. via Google alerts) is essential.

When will the right to be forgotten apply?

The right to be forgotten is not absolute – in other words, a search engine operator may, at its discretion, refuse a delisting request.  When deciding whether to delist URLs, search engine operators perform (or are meant to perform) a balancing exercise between your privacy rights, the search engine’s legitimate interest in processing the data, and the public’s right to freedom of expression.  A search engine will consider factors such as the accuracy, relevance and sensitivity of the information, whether the information is in the public interest, and if the data subject is a public figure.

Will search engines delist webpages relating to my criminal conviction?

The success of a right to be forgotten request depends heavily on the circumstances of each case.  Search engine operators will (or should) balance your privacy rights in respect of having information about your conviction delisted against the search engine operator’s legitimate interest in processing the data and of the public’s interest in having access to the information.

Google, for example, states in its Right to be Forgotten Overview that where the data requested to be delisted relates to a criminal conviction, it will consider:-

“whether it is strictly necessary to continue to display the information in order to protect the freedom of information of our users, in addition to protecting themselves from the possibility of similar future crimes by obtaining that information. In considering the time period before we delist information about a crime, we also look to local rules around when convictions become spent, expunged or similar – that is, procedures that allow those with criminal convictions to put the conviction behind them in some official way.”

The EU Working Party’s 13-point checklist of factors that should be considered by data protection authorities (such as the UK’s Information Commissioner's Office (ICO)) when deciding whether search results should be delisted provides that data protection authorities are “more likely to consider the de-listing of search results relating to relatively minor offences that happened a long time ago, whilst being less likely to consider the de-listing of results relating to more serious ones that happened more recently. However, these issues call for careful consideration and will be handled on a case-by-case basis.”

A practical application of some of the relevant factors can be found in the high-profile case of NT1 & NT2 v Google LLC [2018] EWHC 799, wherein NT1 and NT2 (whose identities were anonymised) sued Google after it refused to delist information about their spent convictions from search results.  This case was the first time the English courts ruled on the application of the ‘right to be forgotten’ principle.  Six years on from the decision, it continues to be a reference point for those seeking to have data about their convictions (or any subject matter) delisted by search engines.  We published a detailed summary of the judgment when it was handed down in April 2018 (see our blog post here).  In short, the judge found that Google’s processing of the URLs was justified in respect of NT1 but not in respect of NT2 (and only made an order for the URLs complained of by NT2 to be delisted).  We summarise the factors the Court considered below:-

• The severity of the offence.  NT1 had been convicted of a serious dishonesty offence and received a four-year custodial sentence.  NT2 had been convicted for sanctioning the use of unlawful phone and computer hacking (i.e. not involving dishonesty or personal financial gain) and received a six-month custodial sentence, of which he served six weeks.
• Whether the conviction is spent. Both NT1’s and NT2’s convictions had become spent under the Rehabilitation of Offenders Act 1974 (once amended in March 2014).  However, the fact that a conviction is spent is a ‘weighty factor’ in favour of delisting, it does not guarantee the success of a request.
• The data subject’s conduct following the conviction. NT2 had pleaded guilty at an early opportunity and expressed genuine remorse for his offending, whereas NT1 had not (and had been involved in various other legal and regulatory wrongdoings since his conviction).
• The data subject’s role in public life.  Both NT1 and NT2 were businessmen and considered to fall within the broad definition of ‘public figure’ adopted by the Court and as put forward by the EU Working Party.
• The accuracy, relevance and sensitivity of the data.  The judge took the view that the information about NT1’s conviction remained relevant to his professional life, but not relevant to NT2’s (who was no longer involved in the same industry as before his conviction).
• The damage and distress caused by the availability of the search results, including interference with private or family life.  The judge considered that NT2 had a young family and deemed the impact on his family life to be more significant than that for NT1.
• The societal benefits to be gained by the availability of the information (i.e. the extent to which the availability of the URLs is still in the public interest).

What can I do if a search engine refuses to delist results?

There are two options open to you: to complain to the ICO or to issue court proceedings to seek an order requiring delisting.  There can be serious adverse cost consequences to unsuccessful court proceedings and so the latter should not be attempted without first seeking legal advice.  It may also be possible to seek to have the underlying content removed by the primary publisher or an intermediary (although this should normally be considered before a right to be forgotten request).

Ultimately, there is no one-size-fits-all approach for right to be forgotten requests.  This is why instructing specialist solicitors to make strong submissions to search engine operators on your behalf can give you the best prospects of success in borderline cases.

If you wish to instruct Brett Wilson LLP to make a right to be forgotten request on your behalf, click here.