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Does Parliament or Google decide when your criminal past is forgotten?

Right To Be Forgotten trial reaches halfway mark

By Gareth Corfield

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RTBF Trial "It's never been suggested that the public have some right to require the press to impart information to them," barrister Hugh Tomlinson QC told the Right To Be Forgotten trial in London's High Court yesterday.

Tomlinson, acting on behalf of pseudonymous complainant "NT1", was discussing European data protection laws during his summing-up speech to England and Wales' senior court in his case against Google.

As we reported last week, the basic case is that NT1 wants Google to delete ("delist", in the legal jargon) three search results about him that come up when one searches for his name. Google had refused to delete the results, which were two news reports from the time and one link to a book that mentioned his conviction.

In the 1990s, NT1 was the majority shareholder in "a controversial property business", which we are banned from naming by a reporting restriction order but can refer to as Alpha. The activities of Alpha attracted the attention of national newspapers, the Inland Revenue (as was), and ultimately the criminal courts. NT1 himself was found guilty in the late 1990s of conspiracy to account falsely and lost his attempt to appeal against conviction.

Since then, his conviction has become spent under the Rehabilitation of Offenders Act. Part of his argument is that Google's search results effectively override laws passed by Parliament which decide when someone's criminal conviction must be ignored.

Proceedings have been ongoing since last week, via some dense and occasionally abstract legal arguments about everything from the Rehabilitation of Offenders Act 1974 to the EU's Article 29 Working Party's guidelines on implementing EU data laws.

"We say this is a very straightforward case," Tomlinson told the court as he invited Mr Justice Warby, the sole judge, to carry out a balancing exercise to weigh up NT1 and Google's competing rights under EU law: "There's four possible ways of doing it. Our view is that the sensible and proper way to deal with it is by treating it as a form of remedial discretion."

"The balancing exercise contemplates a situation in which there is breach of one or more data protection principles but, nevertheless, no 'delisting remedy' is given because the balance tips in favour of continued processing," said Tomlinson's written submission to the court on this point.

Mr Justice Warby, the sole judge, commented: "I'm not keen to decide any more than I need to decide about an old regime that is about to be overtaken," referring to the EU's new GDPR laws that come into force this May.

NT1 himself sat at the front of the court during yesterday's hearing. Wearing a light purple shirt and dark striped tie, he was seated between his two solicitors, both of whom are from London law firm Carter-Ruck.

Antony White QC, Google's barrister, had argued that Google ought to be protected by the journalism exemption from the EU's data protection laws, something that Tomlinson urged the court not to accept: "Google's whole modus operandi is it has no editorial discretion at all, it is all done by algorithms. None of this helps Google in the slightest."

"My lord, it is not entirely clear whether your lordship needs to decide this issue either," he continued. "Because, as I understand it, Mr White doesn't rely on the journalism exemption for what it appears to do, namely exempt his client from all the data protection principles save one which is irrelevant in this case... We say that the journalism exemption can have no application in this case. If Mr White was right, and he shies away from this conclusion for obvious reasons, but if he was right – if the journalism exemption applies, then none of the data protection principles apply; he is exempted from those, and if he is exempted from those, there is no issue about data being irrelevant, excessive and so on. So there is no right to delist."

The judge demurred: "It is not an absolute exemption... it'’s a qualified exemption," meaning that it isn't a get-out-of-court free card for Google. NT1 argued that the news reports linked to by Google are inaccurate, and because the Google snippets contain personal data about him (i.e. his criminal conviction), Google is therefore liable and must delete them on request.

Tomlinson later described these snippets as "not journalism, for the reason the ICO submits". The Register has asked the ICO to show us a copy of its submission to the court in defence of NT1 and will update this story when we hear back from them.

For his part, White pointed out in his written arguments that NT1's conviction "arose out of [his] criminal conduct" as a businessman in charge of a "substantial" business "selling or providing services to consumers".

"This," White continued, "is important... it means that the information in question is information about [his] business or professional life," and not, as Tomlinson strenuously argued, something that could be said to be private information, or sensitive personal data.

"Customers and investors who may interact with or be affected by" NT1's current business ventures, White continued, "have a weighty interest in the accessibility of true information about their past criminal misconduct."

Google's legal team also told the court that the search results NT1 was complaining about were "true information about convictions for serious criminal offences, relating to business activities, pronounced in open court", further describing his attempts to show them as misleading as "rewriting history".

In response, Tomlinson said: "My lord, it is perfectly obvious that if your first and second results on Google search say you're a ... fraudster, it is obvious that it is going to cause you prejudice," adding that NT1 had been emailed by potential business partners who had googled him and discovered the reports of his previous conviction.

The NT1 case has now ended. Next week the second trial linked to the Right to be Forgotten, NT2 v Google, commences in the High Court. The Register will be reporting that case as well. ®

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