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Commercial: Forget me, forget me not, forget me!

NT1 & NT2 [2018] EWHC 799 (QB)

The High Court had to decide on the right of individuals to “be forgotten” or, more accurately the right to have their personal information “de-listed” or “de-indexed” by the operators of internet search engines (“ISEs”).

The claimants were businessmen convicted and sentenced many years ago for criminal offences arising out of their business activities. Their convictions were spent. They each complained that results returned by Google’s ISEs, “Search”, featured links to third-party reports, they alleged were inaccurate and/or old, irrelevant and of no public interest. In the alternative, they argued that the links were an illegitimate interference with their Convention rights. The claimants’ claims were brought under the Data Protection Act 1998 (“the DPA 1988”), Human Rights Act 1988 and the tort of misuse of public information.

In reaching its decision the court deliberated on the use of the journalistic exemption afforded under s.32 of the DPA 1998 and the approach of the court to a claim to be de-listed in light of the decision of the Court of Justice of the European Union (“CJEU”) in Google Spain SL v Agencia Espanola de Proteccion de Datos (AEPD) (C-131/12) [2014] QB 1022.

Adopting the approach of the CJEU in Google Spain, Warby J held that the court had to strike a fair balance between the fundamental rights of the data subject and that of the interests of users of ISEs such as the right to freedom of expression and freedom of information. The outcome of such an exercise depended on the nature and sensitivity of the processed data as well as the public interest in having access to that information. Further, the balancing process was not a stand-alone exercise, separate from the question of compliance with the DPA 1998. It was an integral part of the process of deciding whether Google’s activities had been and were being carried out in accordance with its duties under the DPA 1998.

Google could not rely upon the journalistic exemption afforded by s.32 of the DPA 1998. Google had not processed the claimants’ data for, or solely for, journalistic purposes. Further, Google had failed to satisfy the court that it held the requisite subjective and object belief that compliance with the provision from which it sought exemption would be incompatible with the special purpose in question, and that this was an objectively reasonable belief.

The claimants’ claims were also not an abuse of process. The claimants had the right to rely on any cause of action that arose out of their particular factual matrix. The claimants were not seeking to exploit data protection law or the tort of misuse of private information to “avoid the rules” – to get round the obstacles that defamation law would place in his way.

The claim in respect of N1 was dismissed. The links were not inaccurate in the manner he complained of. Google’s processing complied with sch. 3 to the DPA 1998 and his claim to be de-listed failed under the balancing exercise in Google Spain. N2’s Claims were made out in respect of his complaints of inaccuracy of the data being processed, his de-listing claim and his tort claim. No compensation was awarded to N2, but an order was made for the relevant links to be de-listed.

Elizabeth Dwomoh / 1st May 2018


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