Using a right to be forgotten to remove criminal conviction publications on the internet
You can apply for a right to be forgotten in relation to criminal convictions. The criminal conviction, subject to your right to be forgotten request, may be a spent criminal conviction or an unspent criminal conviction.
P.R. was a successful businessman, working in the construction industry who since the success of his Right to be Forgotten appeal application nearly three years ago, has become the owner of one of the largest construction companies in the North West of England.
In 1997, when he was in his late 20s, living in Holland, P.R. made the biggest error of his life, one which he was going to regret forevermore. He downloaded what he thought was a bulk file of adult pornographic images and saved them to his laptop.
Some years later in 2003, whilst living in England, P.R. home was burgled and items, including his old laptop were stolen. Eventually, the police recovered the laptop and whilst examining it, they found on the downloaded file, which unbeknown to P.R., a small number of child pornographic images intermingled with the adult photographs.
P.R. was charged with an offence in respect of the indecent images.
Criminal offences relating to possession of certain types of images on a computer, are often considered ‘strict liability’ offences. This means that a person is guilty of an offence by possessing the images regardless of knowledge or criminal intent.
P.R. therefore admitted to the offence. He was highly remorseful and embarrassed. The court accepted that he possessed the material unwittingly and sentenced him to a Community Rehabilitation Order.
Under the provisions of the Rehabilitation of Offenders Act 1974 (as amended since the Legal Aid, Sentencing and Punishment of Offenders Act 2012), P.R.’s Community Rehabilitation Order became a spent conviction in 2008; five years later. The law has now changed in minor convictions of this type so that the offence would have become spent in just one year.
Unfortunately for P.R., a reporter for a local newspaper was in court and the case was reported in a short article in the local newspaper. A few years later, past editions of the newspaper were uploaded to the internet and since then, anyone who carried out a search for P.R.’s name on Google, would have found the news report about the conviction appearing as the first search result for P.R.’s name.
The news article continuously showed on Google searches for 12 years. During these 12 years, P.R. and his family were shackled by the article, living under the cloud of the mistake he had made all those years ago, which P.R. re-lived every single day due to its prominence on the internet.
The article had a devastating impact across all aspects of P.R.’s life, but particularly so after he got married and started a family of his own.
P.R. became incredibly anxious and fearful of taking his children to school or picking them up as he felt that all the other parents looked at him in an odd way, for no reason other than the article.
He felt trapped and unable to take an active part in the social aspects of parenthood and in social life generally.
P.R.’s greatest fear was that his children would be subjected to cruelty and possibly even bullied as a direct result of the article, as it was so easily accessible and prominently displayed on Google searches.
Prior to the publication of the article on the internet, P.R. used to be gregarious and outgoing, fun-loving, with a love for people and human interaction in all aspects of his life. However, he had become reclusive and had no friends. He started to feel totally isolated and had withdrawn from the mainstream society that he was once so active in.
P.R. could no longer prosper in his career in the way that he once did. He became fearful to use the internet.
P.R. made a right to be forgotten application to Google, requesting that Google removes the articles from search results. Google declined the application. According to Google, P.R.’s conviction was a matter of public interest to the extent that the public interest outweighed his right to private life. Upon the recommendation of his commercial lawyer, P.R. asked this firm for help.
Our lawyers were unable to accept Google’s grounds for refusing P.R.’s Right to be Forgotten application.
Despite the unpleasant nature of it, the offence was of a minor nature, it was old and there was no public interest in its continuance publication. The news report was incomplete. It did not provide details of the sentence received or of the consideration the judge took into account whilst delivering the sentence. Furthermore, criminal convictions are considered as sensitive personal data which means the data processor (Google in this case) had to justify its “public interest” claim in some detail, rather than simply claiming there was public interest in the continuation of the publication.
Our Right to be Forgotten lawyers, having assessed P.R.’s case, concluded that an appeal to the Information Commissionaire Office (ICO) was likely to be successful. Right to be forgotten appeal to the ICO against Google decision is one option which is available to individuals who had their right to be forgotten request to Google refused. It his, however, not the only option and certainly not always the best one.
The appeal to the ICO consisted of no less than 14 pages of submissions accompanied by evidence, schedules, proofs and witness statements. It was a submission that had to succeed considering the likely impact of an adverse decision on our client.
The Information Commissionaire Office took nearly 12 weeks to consider the right to be forgotten appeal. Eventually the appeal was successful and Google was ordered by the Information Commissionaire Office to change its right to be forgotten decision and de-list the article from its search results.
It has been nearly 3 years since Google de-listed the article around P.R.’s conviction and P.R. has told us that his quality of life has since changed beyond recognition.