Remembering the Right to be Forgotten

February 21st, 2018

It all seems a long time ago that the CJEU handed down its judgment in Google Spain and inculcated the right to be forgotten doesn’t it? Commentators – including here and here – opined with varying degrees of wailing and gnashing of teeth about the implications of it, and how endless litigation was anticipated. But there hasn’t been all that much. The lion has been sleeping so far. 

There has been the odd unreported County Court reliance (see here). There have been a few attempts to judicially review the Information Commissioner for agreeing with Google that a particular search result or results ought not to be delisted, but those have all failed or come to nothing (see, e.g., here) thus far. (The most recent of them – R (AK) v Information Commissioner – was refused permission by Choudhury J at an oral renewal hearing late last year and permission to appeal to the Court of Appeal is being sought. Tim Pitt-Payne QC acts for AK and I act for the Commissioner.)

The approaching dust-cloud of a migrating horde of right to be forgotten litigating wildebeest is, however, increasingly on the horizon. Lest, like Mufasa, you be crushed underneath an unexpected flurry of developments, it is worth providing a short update on judgments and cases approaching with speed down the valley. In this not-at-all-tortuous analogy, consider me Zazu.

First, a reminder of a couple of CJEU references from France of importance. Case C-136/17 GC v CNIL asks a number of questions about the inter-relationship between the right to be forgotten and special categories of personal data. (I act for the UK.) Case C-507/17 Google v CNIL concerns the French data protection authority’s attempt to enforce a global right to be forgotten on any Google platform (on which, see Robin’s summary here). Both those references will have to wend their way through the Luxembourg process for some time yet.

Second, there has been a recent reminder of the need to properly serve proceedings on Google. In ABC v Google Inc [2018] EWHC 137 (QB), the claimant in person made an application for an interim injunction against Google requiring it to block access to a blog site which made reference to a previous, now spent, conviction of ABC’s. However, Google Inc does not exist: the proper defendant is now Google LLC, and Google LLC had never been served with either the claim or the application. Nor had permission to serve out of the jurisdiction on Google LLC (based in California) been obtained. The application failed for that procedural reason alone.

Third, a substantive right to be forgotten trial is – however – coming to a court near you (if you are on Fleet Street at least) very soon. That case is the NT1 & NT2 v Google LLC litigation. Both claimants have spent convictions to which reference is made in search results against their names. Anya recently noted (here) the judgment of Nicklin J – [2018] EWHC 67 (QB) – arising out of the pre-trial review, which considered reporting restrictions. Since then, there has been a further judgment in the case from Warby J dealing with applications which required resolution before the trial commences on 27 February: [2018] EWHC 261 (QB). One of the issues he dealt with was an application to intervene from the Information Commissioner, who had only become aware of the case following the judgment of Nicklin J. By the hearing, there was no dispute about the appropriateness of the Commissioner participating and the application was granted. Anya Proops QC and Rupert Paines are instructed for the Commissioner. Warby J also resolved the reporting restriction issues following applications from various third party media organisations. Not surprisingly, the general effect is that NT1 and NT2 are not to be named or identified.

Fourth, although both Nicklin J and Warby J made technically correct references to the NT1/NT2 case as being the first right to be forgotten case in the High Court, it ought not to be overlooked that it is not the first such case within the United Kingdom. Although it has garnered little by way of attention, judgment was handed down by Stephens J in the High Court of Northern Ireland in the autumn of last year on a right to be forgotten claim: Townsend v Google Inc & Google UK Ltd [2017] NIQB 81. Strictly speaking, it was an application for leave to serve out of the jurisdiction on Google, but the judgment addresses the substance of the claim in considerable detail and it is hard to see how a full trial would have resulted in a materially different judgment.

Mr Townsend has a considerable number of criminal convictions, including some obtained as a child for misuse of the telecommunications system in sending sexualised text messages to other children, and for breach of a sexual offences prevention order imposed upon him. As a result of his numerous convictions, there had been a significant amount of journalistic reporting of his record. The claim concerned various search results obtainable through Google to journalistic reporting of the convictions he obtained as a child. Stephens J found no serious issue to be tried in respect of breach of confidence and misuse of private information claims, and the bulk of the reasoning addressed the DPA complaint.

The breaches of the DPA were put in different ways, and all were rejected by the Court as disclosing no serious issue to be tried. Stephens J held that Google had met condition 6 of Schedule 2, because there was no Article 8 privacy right and the public interest in open justice, and the right to free expression, meant that there was no unwarranted interference. Conviction information being sensitive personal data under the DPA, he held that Google also met condition 5 of Schedule 3 because, in the light of the open justice principle, “by committing an offence he is deliberately taking steps to make the information public”. (This, as a matter of direct authority at least, is a debateable conclusion; certainly is not immediately apparent how Stephens J could conclude that there was not even a serious issue to be tried.) Given the public interests in play, he held there was no breach of the third or sixth principles. There was no unwarranted distress to entitle reliance on the section 10 notice which had been served. As a result, service out for the DPA claim was also refused without needing to consider Google’s reliance on the journalism exemption and on the e-commerce provisions which have formed a core part of litigation against Facebook in Northern Ireland (see here).

The judgment in Townsend is a very significant one. It does not, of course, bind the English High Court in NT1/NT2, but it will require careful and respectful handling by a court of concomitant jurisdiction. Nonetheless, it would not be an undue incursion into the comity principle to suggest that some of the DPA issues addressed in Townsend were not unequivocally correctly decided, or that there is no room for a reasonable difference of view.

Doubtless all of this will come out in the wash in the NT cases. The wildebeest are coming closer…

Christopher Knight

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