Can you apply for a right to be forgotten even where the offence is not yet spent
The provisions of the Rehabilitation of Offenders Act are often used by search engines to determine whether to approve a right to be forgotten request, depending on whether the criminal conviction in question is considered as spent.
Example of a right to be forgotten case where conviction is not spent
Rehabilitation of Offenders Act and right to be forgotten
Appeal against refusal of a right to be forgotten request criminal conviction
Impact on delay of trial on a right to be forgotten request
Impact of news reports about a criminal conviction and a right to be forgotten
Example of a right to be forgotten case where conviction is not spent
In June 2020, Julia (not her real name) contacted us in connection with a very unfortunate event that took place in 2014, which was continuing to have significant impact on her life. In August 2014, she had an altercation with a police officer, whom she felt was stopping and searching her for no good reason. There was some history to this matter as it was not the first time that officers in the area had stopped and shard Julia.
Following the altercation, Julia was charged with common assault and her case was listed for trial in February 2017, some two and a half years later. She pleaded guilty to one charge of racially aggravated common assault, following which she received a prison sentence of 12 months. Her conviction would be considered as “spent” 48 months after the completion of her sentence, namely on 13 February 2022. Julia’s court case was widely reported in the press, particularly because the victim was a celebrated police officer and the racial element that was attached to the offence.
In some of the news articles, there were errors of facts about her personal life, her background, and the circumstances of the offence. Since her conviction, Julia has turned her life around, but the online articles served as a constant reminder to you and to others of her past. The news articles which appeared on Google, on Bing and Yahoo and on other search engines in relation to her name, prevented you from moving on and from becoming the type of person she has worked so hard in recent years to become. Julia’s objective was to make sure that when people look her name up on Google and Bing search engines the articles about her previous convictions didn’t appear.
Rehabilitation of Offenders Act and right to be forgotten
There is no requirement for a conviction to be considered as spent in order to make a successful application under a right to be forgotten. However, whenever your criminal conviction is spent under the Rehabilitation of Offenders Act, Google and other search engines must take this fact into consideration when deciding whether to allow your right to be forgotten application.
In most cases, if your right to be forgotten request is in relation to a conviction that has not been spent under the Rehabilitation of Offenders Act, Google and Bing will initially reject your request as these appear to be the instructions that first line right to be forgotten requests assessors are given.
Appeal against refusal of a right to be forgotten request criminal conviction
If your right to be forgotten request, following a criminal conviction that has not yet been spent is rejected, you should consider serving a formal GDPR Notice on Google or Bing or on any of the relevant search engines. A GDPR Notice is a legal document, often similar to a Statement of Case or Particulars of Claim so it needs to be detailed enough to first you’re your Notice to be taken seriously, and second, to allow you to go with it to court, should the search engine still refuse your right to be forgotten request following the service of the GDPR Notice.
We recommend that you use an experience solicitor to draft the GDPR Notice for you, particularly if your case is legally complex or if, for example, you are making the right to be forgotten request when your criminal conviction is not yet spent. An experienced solicitor will be able, in many cases, to find a loophole that will make it easier for Google and for other search engines to allow your right to be forgotten request.
Impact on delay of trial on a right to be forgotten request
In Julia’s case, there was a delay of nearly two and a half years in her case coming to trial. She pleaded guilty at the earliest opportunity which means that she played no part in the delay in disposing her case. In other words, had the police and the courts been more efficient, by the time Julia came to us to seek legal advice, her conviction would have already been considered as spent under the Rehabilitation of Offenders Act.
Considering the fact that the offence was committed some distant 8 years ago and that it was at the lower end of the assault scale, it would be unfairly prejudicial for Julia to have to continue to suffer the consequences of the news articles about her conviction appearing on internet searches. Julia, would therefore, be entitled to have the news articles about her criminal conviction delisted from internet searches even though her conviction was not yet considered as spent.
Impact of news reports about a criminal conviction and a right to be forgotten
A compelling GDPR Notice will often include a persuasive legal case to the search engine, to have links to the historic articles delisted from search results for searches for your name. Whilst the specifics of the events that took place many years ago are of course important and are relevant to the delisting consideration, what could, often, tip the balance in favour of the delisting is the outdated and incomplete nature of the news reports and the disproportionate impact the articles are having on you as an individual who is trying to rehabilitate himself.
The impact of ongoing news reports about a criminal conviction on the well-being of the individual and their family is always significant. Every GDPR Notice should also include a written impact statement from the individual and, when relevant from family members who might also be affected by the ongoing reminders of unpleasant historic events.
The search engine has to consider each case on its own merits so a powerful written impact statement could make a significant difference to the outcome of the right to be forgotten request.
