Advances in technology over the last few decades have enabled users to share information more freely. As a result of a few clicks, users are able to find information on almost any topic, including another’s past conduct. In 2018, the average citizen is able to access the Internet through their smartphone, tablet, laptop or a combination thereof. The availability of such information has led to interesting issues, subject to intense debate. One such issue is whether there is a ‘right to be forgotten’, particularly information that a person finds embarrassing. This issue has been at the centre of much litigation. Does the right to be forgotten extend to those who have committed criminal offence?
By way of background, the Court of Justice of the European Union (CJEU) ruled that “irrelevant” and outdated data should be erased on request in 2014. The judgment (Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González, Case number: C-131/12) can be found here. Consequently, Google received requests to remove at least 2.4m links from search results. It should be noted that search engines can reject applications if they believe the public interest in accessing the information outweighs a right to privacy.
A recent decision, this time stemming from the European Court of Human Rights (ECtHR) in Strasbourg, indicates that those convicted of murder do not have a right to be forgotten. This is the latest twist in the tale as to whether such a right does in fact exist and highlights the potential conflicts between Articles 8 and 10 of the European Convention of Human Rights (ECHR). In this case, the argument put forward by the Applicants was that their Article 8 ECHR rights had been infringed; therefore, there was a need to have archive documents anonymised. Upon examination of the judgment, it appears to lean in favour of freedom of expression. This is four years after the CJEU’s decision in Google Spain (Case C-131/12) as noted above and appears to run contrary to that decision. As a result, there appears to be a divergence between the approaches of the regimes, this may need clarification at a later point.
After seeing their legal challenge defeated in the German courts, the Applicants asked the ECtHR to decide whether this ruling took into account the power of web search engines. The ECtHR ruled that the question of what information should be published in a news report was a matter for journalists, so long as these decisions corresponded with ethical and regulatory norms. There were also concerns that any obligation to assess the lawfulness of reports at a later stage following a request from the individual would create a risk of the press omitting identifying elements from the outset. One piece of information that appears to be useful to the ECtHR is that the articles in question did not reflect an intention to present the Applicants in a disparaging way or to harm their reputation. If there had been harm to the reputation of the Applicants, the outcome may have been different.
A similar issue has also been before the UK courts in 2018. At the beginning of the year Google had two cases in the High Court of England & Wales on the right to be forgotten. The first case was brought by a Claimant who had been convicted of conspiracy to account falsely in the late 1990s and wanted Google to remove results that mentioned his case, including web pages published by a national newspaper. The second case was brought by a Claimant who was convicted more than 10 years ago of conspiracy to intercept communications.
In the first case, Google won. In the second case, the Claimant won. At the time, there were concerns that the result of the second case could have wide-ranging repercussions. There were implications for other convicted criminals and those who wanted embarrassing stories about them erased from the web. During the conduct of both cases, there were significant concerns that any success on the part of either of the Claimants could result in cherry picking one's past, selectively picking what is shown in the public domain and what is not. It does provide a precedent for such action to be taken, however, if the information was still in the public interest, it may form a defence to the claim. The successful Claimant's case did see Mr Justice Warby rule out any damages payment, however. This would imply that there would be no financial gain for those in such positions.
The distinction between the two is important to note. It appears the first Claimant continued to mislead the public; therefore the information was necessary to prevent any further exploitation. The second Claimant, on the other hand, had shown remorse. It should be noted that the crimes carried out by the second Claimant were regarding the conduct of third parties towards consumers/customers, not his own conduct. As a result, Mr Justice Warby ruled that the previous crime and information would not be of relevance to his future dealings.