Waiting to be forgotten

The right to be forgotten principle is being tested in the UK for the first time in two separate High Court trials heard this week and last by Mr Justice Warby.

Both cases, NT1 v Google and NT2 v Google, relate to Google’s refusal to delist search results relating to spent convictions.

The right stems from a 2014 European Court of Justice ruling that a search engine must consider removing links, and may be ordered to do so.  

Iain Wilson, managing partner of Brett Wilson LLP, speaking to LexisNexis Legal Analysis, said: ‘The term “right to be forgotten” is somewhat misleading because there is no absolute right—the court will have to be satisfied that there is no overriding public interest in the search results remaining available.

‘The outcome of the case is eagerly awaited by both practitioners and those seeking to suppress adverse search engine results. Many commentators believe the answer to the question is obvious—Google should be required to delist search results at the point when a conviction becomes spent. To allow search results to appear prominently against a person’s name after a conviction becomes spent undermines the purpose and functioning of the Rehabilitation of Offenders Act 1974, it being common practice for prospective employers (or any “interested” party) to undertake a Google search on their subject.’

Wilson said lawyers will be looking for guidance from the courts on the interplay between the right and the General Data Protection Regulation (GDPR). He said the GDPR’s ‘right to erasure’ is not an absolute right as data controllers may continue to process information if necessary for freedom of expression, public interest, public health and other purposes.

Under the GDPR, however, the burden is ‘effectively reversed’, he said, so it will be up to data controllers to demonstrate compelling grounds for keeping the data.