London, UK: In the Landmark privacy case of NT1 & NT2 v Google LLC, the presiding judge, Mr Justice Warby, Friday, ruled in favor of one of the plaintiffs anonymised as NT2.
According to court records, the claimants are two businessmen who were convicted of criminal offences many years ago. They complain of search results returned by Google’s ISE, “Search”, that feature links to third-party reports about the claimants’ convictions which they say are inaccurate and/or old, irrelevant and of no public interest, or otherwise an illegitimate interference with their rights
The claimants sued to have the links in question excluded from Google Search results either because one or more of them contain personal data relating to him which are inaccurate, or 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. The claimant was also requesting compensation for continued listing between the time of the delisting request and judgment.
The 76 page court judgment – by the High Court of Justice, Queens Bench Division – identified and discussed in detail the legal framework, which is “complex and has developed over time”, with many legislative provisions dating back to before the internet and well before the creation of ISEs.
Among the key elements of the legal framework are:
- the European Communities Act 1972, which made EU Directives directly applicable in the UK, and required English Courts to apply decisions of the Court of Justice of the EU (“CJEU”);
- the Rehabilitation of Offenders Act 1974, which provides that some convictions become “spent” after a specified period, after which the offender is to be treated “for all purposes in law” as if he had not been convicted, but cannot sue for defamation in respect of a report of his conviction or sentence unless he proves malice (the convictions in these cases are “spent”.
- The Data Protection Act 1998 (“DPA”), which implemented EU Directive 95/46
- (“DP Directive”), the purpose of which was to safeguard individuals’ fundamental rights and freedoms, notably the right to privacy, within the EU;
- The tort of misuse of private information, recognised by the House of Lords in the 2004 decisions in Campbell v MGN Ltd and In re S (A Child);
- The May 2014 decision of the CJEU in Google Spain SL & another v Agencia Espanola de Proteccion de Datos (AEPD) and another Case C-131/12  QB 1022 (“Google Spain”), in which the CJEU interpreted the privacy rights enshrined in the DP Directive and the EU Charter of Fundamental Rights as creating a qualified “right to be forgotten”; and
- Article 17 of the General Data Protection Regulation (“GDPR”), which came into force on 25 May 2016 and will have direct effect in Member States, including the UK, from 25 May 2018.
The CJEU’s decision in Google Spain requires the Court to strike a fair balance between fundamental rights and interests, of which freedom of expression and freedom of information are two. The outcome may depend on the nature and sensitivity of the processed data and on the interest of the public in having access to that particular information.
With regards to NT1 the court ruled that NT1 has failed to make out his claim for delisting pursuant to Google Spain.
However, for NT2 the court ruled that a delisting order will be made but awarded no compensation. The judge said he is not awarding compensation because Google has established the defence under s13(3) of the DPA, that it took reasonable care.
“..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”, Mr Justice Warby wrote.
“NT2” was convicted of conspiracy to intercept communications and received a prison sentence of six months as a result. “NT2” requested that Google remove online links to articles containing information about his conviction and the company refused him.
The result is likely to receive a mixed reception from rights groups as privacy champions have long seen the retention of personal information online as a violation of an individual’s basic rights. Others, however, have expressed concern that the public record can now be “rewritten” with powerful individuals able to remove incriminating information about themselves, making media reporting of historical events much more difficult.
The case has divided opinion with some championing the privacy of individuals, while others fear the erasure of the public record that will make it harder to uncover evidence of wrong-doing.