English High Court considers Google Spain decision in detail
11 May 2018
Just two months after the High Court considered the seminal Google Spain judgment for the first time in this jurisdiction in Savage v Data Protection Commissioner (see here), the English High Court has done likewise in NT1 & NT2 v Google LLC [2018] EWHC 799 (QB).
It is a significant judgment for those who may wish to apply to Google to have personal data which is produced by their search engine results delisted. Such an application would be on the grounds that the data is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes of the processing at issue carried out by the operator of the search engine,” to quote the Grand Chamber in Google Spain.
It is also a lengthy judgment judgment, which covers in some detail the CJEU’s judgment, the Data Protection legislation, the balancing of human rights and the nature of spent convictions. Its many findings, therefore, cannot be given the attention they merit in this relatively brief analysis.
The Court refused the de-listing application (the so-called “right to be forgotten”) of the first claimant, while granting that of NT2. It is unlikely, however, that Google will consider this to be the legal equivalent of a score draw. Warby J’s judgment providesclear guidance in relation to the boundaries within which future applications can be conducted and, given the success of NT2’s application, there will no doubt be more to come.
The English Court made no reference to the judgment in Savage, though it should be pointed out that the facts of the two sets of proceedings are quite different. Savage concerned an application in relation to data processed by Google’s search engine which the applicant claimed was inaccurate. Although a similar application formed part of in the pleadings in NT1, the substantive focus of that case was on the degree to which the continued publication of accurate data had become irrelevant due to the passage of time, and constituted an disproportionate infringement on the Claimant’s right to privacy. This was essentially the same focus as the Google Spain judgment.
Background Facts
The joined cases concerned similar de-listing applications against Google’s search engine facility in respect of two, otherwise unrelated plaintiffs. Both plaintiffs sought the removal of details relating to their historical criminal convictions, which were presented when their names were entered into Google’s search engine.
In the late 1990s, NT1 was convicted of criminal conspiracy to defraud the Inland Revenue through false accounting running into millions of pounds, for which he received a four-year custodial sentence. NT2 offences were, by comparison, relatively minor. In the early part of this century, he was sentenced to six months imprisonment (though released on licence after six weeks) for authorising a firm to conduct computer hacking and phone tapping to find out who was engaged in hostile activity against his company.
An initially noteworthy feature about the proceedings is that both of the applicants were anonymised. The constitutional imperative to the open administration of justice does, of course, make the anonymisation of plaintiffs in this jurisdiction a rare occurrence (as confirmed in McKeogh v Doe & Ors [2012] IEHC 95). It is arguable, however, that the logic for such anonymity as described by the Court – “(it) is required to ensure that these claims do not give the information at issue the very publicity which the claimants wish to limit” – has an attraction when it comes to de-listing applications of this sort.
In his judgment, Warby J expanded on the jurisprudence of Google Spain, especially in relation to the factors that will be considered in weighing up whether to accede to a de-listing request from a data subject. Central to NT1 was the balancing exercise to be undertaken. This involved an appraisal of the data subject’s right to privacy as against the search engine operator’s legitimate business interests and freedom of expression, coupled with the public’s right to freedom of information.
The Court, significantly, pointed out that while the CJEU’s ruling in Google Spain indicated that, as a general rule, the data subject’s rights would ordinarily prevail, this was not to be taken as an indication that a hierarchy of rights existed which placed their’s above that of the public. At paras 132/3 of his judgment, Warby J states that “In my judgment, the balancing process in any individual delisting case is ordinarily, as a matter of principle, to be entered into with the scales in equal balance as between delisting on the one hand and continued processing on the other. I do not read Google Spain as inconsistent with this … The “general rule” to which the court was referring was a descriptive, not a prescriptive one.”
Due to the fact that the data sought to be de-listed referenced criminal convictions handed down to the Claimants, the Court considered in some depth the nature of spent convictions under the Rehabilitation of Offenders Act 1974. It examined the degree to which the provision, that a person whose criminal offence which has become spent and should henceforth be treated as though they never committed the offence, impacts on a search engine operator’s right to index stories which reference this offence. With the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 operating a similar scheme in this jurisdiction, it will be interesting to note the way it is interpreted should a Claimant attempt to rely on it in a de-listing request.
A further interesting aspect of the judgment is its response to Google’s submission that it should be able to avail of the “journalism” exemption under s.32 of the UK Data Protection Act 1998. This provision is closely mirrored in this jurisdiction in s.21of the Data Protection (Amendment) Act 2003), which grants an exemption from the provisions of the act, inter alia, if “the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material.” The Court rejected the notion that Google’s search engine results could be categorised as journalism, stating that “the concept (of journalism) is not so elastic that it can be stretched to embrace every activity that has to do with conveying information or opinions. To label all such activity as “journalism” would be to elide the concept of journalism with that of communication. The two are plainly not the same, and I do not consider that Google’s own activity can be equated with journalism.”
Different treatment for NT1 and NT2
Perhaps the most interesting aspect of the Court’s judgment is the weight it gave to NT1’s evidence, most noticeably his perceived lack of remorse for his criminal wrongdoing. Such emphasis should not, it is submitted, be seen simply as the Court’s personal disapproval of NT1. Instead, the Court tied in his lack of contrition, and indeed continued refusal to admit his crimes, with the evaluation of the degree to which the continued publicising of his criminal history by Google could be considered relevant.
Whether such processing of personal data by Google remains necessary, long after the event to which it relates has faded into history, is of course one of the central factors to be considered. In Mr. Gonzalez’s situation in Google Spain, references to attachment proceedings by the Spanish tax authorities, which did not include any allegations of fraud and had long-since been settled, were no longer considered necessary. In NT1’s case, however, notice was taken of the Claimant’s continued business activities, and his continued attempts to portray himself online and via social media as having an unblemished business record. This prompted the Court to take a less favourable stance towards his attempts to have his previous convictions for fraud “forgotten.”
As pointedly summed up by Warby J at para 170 of his judgment: “His business career since leaving prison made the information relevant in the past to the assessment of his honesty by members of the public. 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.”
The weight that the Court attached to NT1’s behaviour since his release from prison, which included his appearance as a witness in Court, is highlighted by the manner in which it dealt with NT2’s application in the same proceedings. Though he shared an almost identical anonym to his co-applicant, the reception that NT2 received from the Court could scarcely have been more different.
Admittedly, NT2’s crime was a more minor one, his sentence much shorter, and it was acquired the status of a spent conviction many years previously. It is noticeable, however, that the Court placed emphasis on NT2’s acceptance of wrongdoing, and his remorse when giving evidence. These were factored into an assessment of whether the data processed by Google was still relevant.
At para 223 of his judgment, Warby J emphasised why his application found favour with the Court, and NT1’s did not: “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 … There is no real need for anybody to be warned about that activity.”
Conclusion
Despite the fact that both Savage and NT1 fall under the same “Right to be Forgotten” umbrella, it would be a mistake to draw too many comparisons between the judgments.
Notwithstanding this, NT1 does provide a welcome analysis of what constitutes inaccurate data, and the degree to which someone can be considered to be a public figure for the purposes of a de-listing application. These are important considerations which were treated in a relatively crisp manner by the Court in Savage. The question of whether Google can avail themselves of the journalist exemption, furthermore, was an argument which was unventilated in the Irish Court.
The case provides a usual summary of the facts that the English courts will taken into account in any future application of a similar nature, and provides persuasive authority as to how the Irish courts should treat a similar application.
The judgment will, it is submitted, allay to a certain degree fears that may have been held in relation to the Google Spain judgment potentially opening up the floodgates when it comes to similar applications. The bar seems to be have been set relatively high in relation to the granting of a de-listing order, as the mere passage of time will certainly not be a guarantee of success.
There is nothing surprising in the fact that the degree to which the information is pertinent to a Claimant’s current activities will be a crucial factor. The manner in which they conduct themselves before the Court in their application is, however, a novel consideration introduced by NT1.
The value of remorse as a commodity, it seems, should not be forgotten.
Ends.