Tugendhat J ended in his Judgment on 19 December 2011 in AB v Barristers Benevolent Association Ltd [2011] EWHC 3413 (QB) by saying: “This judgment may alert practitioners to the possibility that information stored on a cache by Google may take several days to have removed”.
The BBA provides support to barristers in many different circumstances, including by way of loans. AB is a barrister who sought a loan from the BBA about six or seven years ago. On 5 December 2011 it was brought to her attention that confidential correspondence between herself and the BBA was available on the internet. She conducted a search through Google and found the information herself.
On 6 and 7 December 2011 the judge on out of hours duty granted an injunction without notice to the BBA. The injunction was discharged because an injunction against the BBA was unnecessary. There was no dispute that the documents in question contained confidential information, and that its confidentiality should be preserved.
On 5 December AB had contacted the BBA. The official she spoke to was already aware of the problem. The BBA assured AB that the BBA’s IT consultant was addressing the issue as a matter of urgency.
The information remained accessible on Google throughout 6 December. The IT consultant said he was doing everything he could. He explained that the problem lay with Google, and that it might take some time for all their servers to be synchronised so as to remove the information from the caches. He explained he had been calling Google offices all over the world to try to get action, without success.
What had happened to give rise to this affair was explained by the IT consultant in a witness statement. In 2005 or 2006 his firm had been asked by the BBA to assist in removing data from one hard drive to a new one. The process was carried out by copying data to a temporary file, which should have been deleted, but was not. It was retained inadvertently on a server. At the time that did no harm, because the server was not publicly available. However a technical change by the firm’s broadband supplier O2 led to the server becoming available to Google to pick up the data without the firm knowing that that was happening.
On Friday 2 December 2011 the BBA became aware that the information was available through Google. The BBA immediately contacted the IT consultant and asked him to deal with it as a matter of extreme urgency. The IT consultant’s firm identified what had happened. He removed the source of information from its server and disconnected the server from the internet. All the data that had been inadvertently stored was deleted. He then contacted Google via the webmaster tools requesting the removal of the material from the Google cache. This is where the problem arose.
On 5 and 6 December the IT consultant made numerous further attempts to contact Google to have the information removed from the caches as a matter of urgency. According to his evidence, and the e-mails that he has exhibited, he could not have expressed himself more forcefully, or more urgently, but he received no prompt response from Google. It was not until 10 pm on Tuesday 6 December that he found some files had been removed by Google.
On the morning of 7 December the IT consultant discovered that there was still information that had not been removed from the caches. He contacted Google again on more than one occasion. It was not until Friday 9 December that Google had fully complied with his request to remove the information in its entirety.