Right to be forgotten for those who work in financial services
Making a successful application under a right to be forgotten if you work in the financial services industry is always going to be a massive challenge. If you also have a criminal conviction for money laundering, your challenge becomes twice as hard to overcome.
Yes, you can succeed with a right to be forgotten request even if you work in the financial industry. You must remember that a right to be forgotten also applies to professional people, which means provided your case has exceptional circumstances you can still remove articles from Google searches even if the articles relate to your profession . Under privacy law, the search engine must consider each case individually so setting out your personal circumstances eloquently is crucial to the success of your right to be forgotten request.
L.R. has been working in the financial services for nearly 25 years. Nearly 18 years ago, L.R. was employed by a US financial services company. He was located in a commonwealth country, which effectively operates a totalitarian regime. One day, L.R got caught in a financial dispute between a local bank and his US company.
The answer is yes. Even articles about your criminal conviction for money laundering can be removed from Google searches.
Following the financial dispute between the two organisations, the local bank initiated the arrest of L.R. in the middle of the night under false allegations of fraud and money laundering. L.R. was arrested and detained in a local police station. If convicted, he could have faced a prison sentence of up to 12 years.
Whilst in detention, it was intimated to L.R. that should his employer settle its financial dispute with the local bank, he would be allowed to leave the country immediately with “only” a caution. A few days later, L.R.’s employer settled the financial dispute and L.R. was brought before a local judge for his “trial”. He was advised by Counsel appointed for him by his employer to plead guilty to one charge of money laundering in return for his immediate release.
There was no question at any time of L.R. being guilty of any wrongdoing and the case against him was nothing short of a grave miscarriage of justice. Following his release, L.R. went back to work for the US employer and 4 years later he became aware that he had been effectively blacklisted by World Check because of his conviction for money laundering.
Subsequently WordCheck had to agree to remove L.R.’s name from all its negative credit scoring and to delete details of his conviction from its database.
After L.R. left his employer, he set up his own financial services company. Shortly after, he became the subject of blog posts, which referred to his criminal conviction. Constant mentioning of someone's criminal conviction, particularly a conviction which is spent, could amount to harassment. In fact, the mention of any past alleged or actual wrong doing, for no good reason or public interest, is likely to constitute harassment (see an example of a case for online harassment injunction where the court ruled that online harassment can occur even if the information published is true).
The blogger blogged anonymously from a website located in the US. L.R. suspected that the blogger was a former disgruntled employee who worked under him with the US employer and who was at one point dismissed from his employment following a report by L.R. for financial wrongdoing.
The blogger continued to blog “updates” about L.R. and about his newly formed company, describing L.R., among other things, as a “fraudster”. The posts were highly defamatory and hugely damaging for L.R. and for his newly formed financial services company. The blog posts appeared prominently on Google searches when any internet users searched for L.R.'s name, together with the name of the company. This of course was causing him distress and left his company open to the potential of serious financial harm.
The blog posts were also followed by regular tweets and were copied by a popular website called RepDigger.com.
When L.R. asked Google to delist the blog posts and other related search results from internet searches, Google responded by pointing out that as L.R. was still working within the financial services, it was in the public interest to know that he had had a relevant criminal conviction.
The fact that the “conviction” was spent did not make any difference to Google.
To facilitate the removal of all the search results in relation to L.R. and his conviction, we started by making a right to be forgotten application to Google. When this was refused, we followed up with a s10 Data Protection Act Notice (now this will be done as a right to be forgotten GDPR Notice).
Despite putting forward a compelling case to Google, this time, Google was adamant not to delist links to the articles about L.R. and his criminal conviction from search result. Google’s main argument was that L.R. was still working in the financial industry and therefore even if his conviction was spent, it was still one of those cases where there was a clear public interest for people to access to the information.
However, we were confident that L.R. had a good case for delisting search results from Google searches. It was clear that he had become the subject of a harassment campaign by an anonymous internet user who simply wanted to ruin L.R. and his newly formed company.
Having left with no alternative, we filed a claim against Google for breach of data. Having served the claim on Google, its lawyers called us to see whether L.R. would agree to settle the case out of court. L.R. agreed to a settlement, the details of which had to remain confidential.
What can be revealed is that the agreement with Google included the delisting of all information relating to L.R.'s criminal conviction from Google searches worldwide, as well as the provision of an undertaking by Google to not allow such information to be shown in search results at any time in the future.
It is always difficult to explain to Google complex and unusual circumstances of a right to be forgotten case. What made this project even more challenging was the fact that there was an earlier court court of appeal case against Google, where the judge criticised a claimant for not accepting responsibility for a criminal conviction that he received and which he requested Google to delist.
It was always going to be difficult to present a case for the delisting of a criminal conviction from Google, whilst having the claimant denying the legitimacy of the conviction. Lastly, when coming to a settlement with Google it is important to insist that Google provides a legally binding undertaking as to future listing of articles on its search engines. Otherwise, the data subject might find herself having to start the process all over again a few months or a few years later.