UK Google rulings on 'right to be forgotten' point to limits on future claims

18 April 2018 3:05pm
Google on tablet

13 April 2018. By Vesela Gladicheva.

Google could be forgiven for wondering whether it received good news or bad today in two landmark UK court rulings testing individuals' "right to be forgotten."

On the bad side of the ledger, its loss in one of the lawsuits will pave the way for more claims. But its win in the other also suggests that future actions from people with old convictions might be limited, and what's needed for success will be clearly understood by judges.

Two UK businessmen, known only as "NT1" and "NT2," sued the search engine company for damages and refusing to remove links to information about past convictions. The High Court in London ruled today that Google was right in the case of NT1, but wrong on NT2.

The actions stem from an EU ruling in 2014, which required Google and other search engines to remove search results for individuals' names that contain content they don't want to appear. Google removes links only in searches for a person’s name. The links will continue to be displayed if relevant to another search.

The court has now established a clear recipe for successful claims, and today's judgment will lead to more lawsuits brought by individuals with past convictions in Britain. 

But the ruling won't hurt Google's pockets: The court rejected the claimants' requests for financial compensation. And the fact that not all future cases will be successful might dissuade some people from taking Google to court, because it would be costly.

Judge Mark Warby pointed out in his ruling that the cases raise "novel questions." They include whether reports in search results containing personal information need correcting, and whether the claimants' data-protection rights extend to "shameful episodes in their personal history."

Roadmap for successful claims

To an extent, the factual differences between the two cases have helped crystallize the recipe for success — including the nature of the conviction and the idea that the contested information should be personal, not related to business life.

A material factor for the judge in his evaluation was also claimants' present attitude to their criminality, and whether they have expressed genuine remorse for their deeds.

The claimants' role in public life was also important, he said. Ideally, they should have distanced themselves from their past convictions by breaking ties with the activity or industry that led to their convictions. They also should not mislead the public and the court about their case.

Crucially, future lawsuits will hinge not only on the facts of the case, but also on how trials pan out. Relevant factors here are the quality of the evidence presented, the claimants' oral evidence in court, and whether they come across as honest witnesses. 

When cross-examined during trial, successful claimants will give clear and relevant answers to the judge, as well as "perform well" and make a good impression, judging from today's ruling. They will not evade, exaggerate or obfuscate.

Perhaps more importantly, to be successful, claimants will need to present robust, concrete proof showing that the information they seek to delist is sensitive and inaccurate. The burden of proof is on the claimant in showing that media reports about him are inaccurate, just as in defamation cases, Warby said in his judgment today.

Importantly for Google, Warby recognized Google's efforts in complying with the right to be forgotten principle.

"This is an enterprise that I accept is committed to compliance with the relevant requirements.… It would be harsh to say that it had failed to take reasonable care to do so," he said in his ruling.

Global Privacy in 2018