The right to be forgotten is beginning to generate some litigation, albeit not yet with any blaze of glory. Following on from the attempt to judicially review the ICO for refusing to try and enforce an individual’s complaint that his data rights were being breached (see here), earlier this week a claimant failed to get his right to be forgotten claim to fly before the Nottingham County Court.
The background is that the claimant, Mr Edwards, was convicted in 2007 in connection with his criminal participation in a vast carousel VAT fraud. He was sentenced to six and a half years in prison for the fraud. He was also given a three and a half year sentence for stealing £18,000 from personal injury claimants through a scheme under which he deceitfully pretended to be a solicitor. Additionally, he was subject to a 12 year ban from taking up any company office. Mr Edwards continues to serve his sentence, although he is now out on licence. The length of Mr Edwards’ sentence means that there is no question of Mr Edwards being rehabilitated on an application of the Rehabilitation of Offenders Act. The fact of his conviction, and the circumstances of it, were widely reported by the media. The BBC, the Guardian and the Daily Mail, amongst others, all published stories about these events on their respective websites. Mr Edwards was unhappy about the fact that the stories continued to be available to the public at large, as hosted by the websites of these media organisations. As far as he was concerned, his offences were historic, dating back over a decade. So he brought a right to be forgotten claim against various media organisations, including the BBC, the Guardian and Associated News, relying heavily on the CJEU’s judgment in Google Spain: Edwards v Nottingham Post Media Ltd & Others.
However, after evidence was served by the Defendants in response to the claim, Mr Edwards confirmed that he wished to discontinue his DPA claim against the Defendants. You might have thought that that was the end of the matter but, rather than abandoning his claim altogether, Mr Edwards decided instead to apply to the court to substitute the BBC et al with Google Inc as the defendant. In effect, Mr Edwards wanted to convert his claim from a claim that the data should be deleted at source to a claim that the data should be de-indexed by the intermediary which effectively brought that data to a wide online audience, namely Google.
At a hearing which took place in Nottingham County Court on 29 July, HHJ Godsmark QC refused Mr Edwards’ application to substitute the defendants with Google Inc. He concluded that substitution should not be ordered because the claim against Google had no reasonable prospect of success, with the result that the court would not grant permission for service out of the jurisdiction on Google Inc.
The judge agreed with the submissions on behalf of the media organisations that the claim was hopeless, particularly in the light of the serious nature of Mr Edwards’ offences and the fact that he is continuing to serve his sentence and remains banned from running a company until 2019. The judge held that, in these circumstances, Mr Edwards could have no reasonable expectation of privacy in respect of the data in question and there was no reasonable prospect of him succeeding in his case that his Article 8 right to privacy outweighed the Article 10 justification for the continued publication of the stories. The public interest, the judge concluded, strongly favoured continued publication and indexing by Google.
In response to a query from Mr Edwards about when that balance might alter, the judge is reported to have commented that he could not imagine a court entertaining such an application during the period of the sentence, the license or indeed for a considerable time thereafter.
The claim was marked as ‘totally without merit’. The media organisations were awarded 100% of their costs.
Mr Edwards’ case was not, perhaps, the most promising context in which to rely on Google Spain. However, it is interesting to see that the right to be forgotten is penetrating the litigation consciousness (especially in chokey, where a lengthy CJEU judgment helps while away the time) and harder cases are doubtless around the corner. The balance between the right to a private life, historic information and free expression will not always be so straightforward to weigh.
Anya Proops appeared for the media organisations, defending the claim. For the BBC’s story see here.