A Judgment to Remember

April 13th, 2018

The judgment of Warby J in NT1 & NT2 v Google LLC [2018] EWHC 799 (QB) – the first (and second) right to be forgotten trials in England and Wales – has now been handed down. You can read it here and there is a summary here. Who wins? It’s a 1-1 draw, with Google winning on the facts of NT1 and losing on the facts of NT2.A longer post will follow, when there has been time to contemplate the very long 230 para judgment. There is a lot in it, and a lot to consider.

Some headline points though:

  • Google is not entitled to take advantage of the journalism exemption in s32 DPA because it is not processing solely for the purposes of journalism, and it could not have a reasonable belief because it had never turned its mind to the issue.
  • Google was entitled in principle to rely on condition 5 of Schedule 3 – material placed in the public domain by the data subject – adopting a broad interpretation of that condition.
  • The main question posed by the CJEU in Google Spain is whether a fair balance is being struck.
  • When answering that question, the issues posed in the Article 29 Working Party guidance are useful ones.
  • The Rehabilitation of Offenders Act 1974 does not operate to prohibit the processing of spent convictions, and although a conviction being spent will be relevant to the balance, it will not be determinative and cannot operate to shut down free discussion and speech on conviction issues.
  • The balance favoured rejecting NT1’s claim, but allowing NT2’s claim, where the offending was more minor and NT2 was remorseful.
  • NT2 was not entitled to compensation because Google could rely on s13(3) DPA.
  • Google had withdrawn its reliance on e-commerce arguments and so they were not decided.

More to come later. I hope.

Anya Proops QC and Rupert Paines appeared for the ICO, as an intervener.

Christopher Knight

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