The High Court of England and Wales has ordered Google LLC to delist links to an article about the spent conviction of a businessman. The case is the first "right to be forgotten" case to be decided in England and Wales. 

There were two claimants in NT1 and NT2 v Google LLC [2018] EWHC 799 QB, decided on 13 April 2018. The identities of both were suppressed. Both were convicted of criminal offences "many years ago" in the words of the presiding Judge, Justice Warby.

The convictions of both men were reported in the news media at the time.

NT1 was sentenced to four years imprisonment for criminal conspiracy in the late 1990s after being connected to a "controversial property business that dealt with members of the public".

Links to that reporting were made available by Google Search as were other links, including some to information on a parliamentary website. NT1 was released on licence after serving half his sentence in custody. The sentence came to an end in the early 21st century. Some years later it became a “spent” conviction under the law of England and Wales. The reports remained online, and links continued to be returned by Google Search.

NT1 asked Google to remove six links in June 2014. Google agreed to block one link but declined to block any of the other five.

Justice Warby said NT2 was involved in "a controversial business that was the subject of public opposition over its environmental practices". 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 and 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. NT2 asked Google to remove the links in April 2015 but it declined to do so.

At issue

Justice Warby said (at [9]) the main issues in each case, stated broadly, werre "(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."

In a lengthy judgment, Warby J considers the Google Spain [2014] QB 1022 decision by the European Court of Justice in 2014, the UK's Rehabilitation of Offenders Act 1974, the Data Protection Act 1998, the European Convention on Human Rights 1951 and also the EU's General Data Protection Regulation which comes into force on 25 May 2018.

He does not accept Google's argument that it had a journalistic exception from the Data Protection Act 1998, or that the two men's claims were really defamation claims and therefore an abuse of process.

Result

The claim by NT1 is dismissed. Warby J held that the information about his conviction was "essentially public in character" and related to NT1's business rather than his personal life (at [170])"

"The crime and punishment information is not information of a private nature. It was information about business crime, its prosecution, and its punishment. It was and is essentially public in its character. NT1 did not enjoy any reasonable expectation of privacy in respect of the information at the time of his prosecution, conviction and sentence. My conclusion is that he is not entitled to have it delisted now. It has not been shown to be inaccurate in any material way. It relates to his business life, not his personal life. It is sensitive information, and he has identified some legitimate grounds for delisting it. But he has failed to produce any compelling evidence in support of those grounds."

However, NT2's conviction was spent under the Rehabilitation of Offenders Act 1974 and there was no reason to suspect that his wrongdoing would be repeated.

"[182] NT2 had a commercial motivation, to protect the business of which he owned a share. But he made no direct personal gain from his crime."

Warby J made a delisting order for a national newspaper article about NT2 which contained some inaccuracies. However, he declined to order compensation because Google had taken reasonable care in its handling of the request for delisting.