ight to be forgotten before a conviction is spent under the Rehabilitation of Offenders Act
The Rehabilitation of Offenders Act sets timelines for when offenders may be accepted as individuals without a criminal record. However, some offences are never considered as "spent" because of the length of the sentence that was imposed by the judge.
It is possible to submit to search engines evidence that you have been rehabilitated in accordance with the Rehabilitation of Offenders Act. The search engine will need to take this information into account when deciding whether to delist searches which relate to your previous convictions from search results.
The right to be forgotten makes no specific reference to the Rehabilitation of Offenders Act which means it leaves an element of discretion for the search engine provider when deciding whether to delist from search results references to previously convictions.
Can you apply for a right to be forgotten before the end of the rehabilitation period under the Rehabilitation of Offenders Act
Yes. You can apply to have news articles relating to your previous conviction delisted or removed from internet search results in relation to searches for your name even before the end of your rehabilitation period under the Rehabilitation of Offenders Act.
Your case might not be as strong but as Google, Bing and other search engine providers have to consider each case on its own merits, there might be circumstances pertaining to your case, which would justify the delisting of news articles (or other publications) about your previous conviction from internet search engines.
Can you apply for a right to be forgotten in relation to search results even if your conviction is never spent
Some sentences fall outside the Rehabilitation of Offenders Act which means the previous conviction can never be considered as “spent”. However, this does not mean that you cannot make a successful right to be forgotten application to Google or to other search engine provides. The Rehabilitation of Offenders Act is only one consideration of many that the search engines need to take into account when deciding whether your application under a right to forgotten succeeds.
Whilst an criminal offence might never be considered as spent for the purpose of the Rehabilitation of Offenders Act, this does not mean that the you cannot have online articles relating to the conviction removed from the internet.
In a way, having news articles about your previous conviction appearing on internet search results has a similar effect to a prison sentence. It is a social prison sentence rather than a physical one, and a sentence that may last forever. This potentially interferes with your human rights and your rights to private and to family life.
Jordan, who used to work as an accountant has just left prison about a month ago. He was sentenced to 24 months imprisonment and served half of his sentence. The offence for which Jordan was sentenced was committed 6 years ago and it related to attempting sexual communication with a child.
Having gone through a rehabilitation process in prison, Jordan now wants to put the past behind him. There are half a dozen online articles about Jordan’s conviction which adversely affect his ability to work as an accountant.
His 13 years old son is being teased at school as him and his father have a fairly unique surname. A search for Jordan’s unique family name brings up the news articles about his conviction. This means that any members of his family is being linked to the offence.
It could be hard to argue that Jordan’s conviction is not a matter of public interest, because whilst it was committed nearly 6 years ago, he only in the past few years been charged and sentenced for it. In cases of people who had been convicted of sex related offences, there is typically a mechanism that is set at the time of their sentencing and/or release from prison to protect the public.
For example, in the case of Jordan, he is required to sign with his local police station occasionally and to report of any changes to his name, address or place of residence. The public interest is therefore being protected, which means , Google should consider the request to delist internet articles about Jordan’ conviction from the internet in relation to searches for his name.
Making an application under a right to be forgotten to remove articles about the criminal conviction
In the case of Jordan, it is likely that a right to be forgotten application, made online by Jordan is likely to be unsuccessful. In Jordan’s case, there are special circumstances that need a lengthy, detailed explanation as well as supporting evidence to demonstrate the disproportionate impact the continuance publication of links to the articles is having on Jordan and on members of his family.
This should be done through a full GDPR notice to Google and to other search engines, which will explain with detailed reasoning the disproportionality element of the publication of links to the articles and how this affects a number individuals far beyond the scope of the original sentence that was imposed on Jordan.
It is possible also possible to make right to be forgotten applications and serve a formal GDPR Notice on behalf of Jordan’s son as well as other members of his family who are being adversely impacted by the continuance publications.