The right to be forgotten before the Courts again

NT 1 & Anor v Google LLC [2018] EWHC 261 (QB) (15 February 2018) – read judgment

This was a Pre Trial Review of an application by the claimants to have details about an old criminal conviction and other information removed from Google and associated websites under the “right to be forgotten”. Each of the claimants sought orders prohibiting the defendant (Google) from continuing to return internet search reports which included information about the claimant which he claimed was inaccurate, stale, irrelevant, and thereby infringed his data protection and privacy rights.  The “right to be forgotten” is, in this context,  also referred to as “de-listing”. The two cases are due to be tried by Warby J at the end of February. In order to avoid an own goal at trial, where those very names and convictions would be made public, the parties sought to come up with forms of pseudonym or cipher that would protect them. One proposal was that

 in the NT1 case a co-defendant of the claimant at his criminal trial in the late 1990s should be referred to as “Mr A”, and that certain offshore companies used by NT1 should be referred to as “Companies A and B”. There are also references to “Businesses A, B, C, D, E, F, G and H”. In the NT2 case, the claimant also had a co-defendant, and the proposal is to call him “Mr A”. This is not the same person as the “Mr A” in the NT1 case. “Company A” in the NT2 case is a cipher for “The business in which the claimant [NT2] previously had an interest.” It is not the same as Company A in the NT1 case. The Confidential schedule in the NT2 case also features “Companies F, G, H, I, J, K and H” which are all different from any of those that feature in the NT1 claim.

Warby J was unimpressed with this alphabet soup. He did not relish the prospect of preparing a judgment, or two judgments, using these ciphers.

The process would be cumbersome and the output is likely to be arid and, as Mr Glen submits, “abstract” and lacking in the colour that will engage the reader. There is a risk that references to “Mr A” may give an inappropriate air of mystery to the issues. References to “Company B” may be more likely to bring to mind the music of the 1940s than real events.

Instead he suggested  that companies might be referred to by some other more user-friendly alphabetical method, such as the international phonetic alphabet (Alfa, Bravo, Charlie, Delta, Echo, Foxtrot, etc). Individuals might be given explicitly false names, as is often done in journalism involving the disclosure of sensitive personal information (eg Mr Andrews, Mr Brown, Mr Carter, etc.).

Although the right to be forgotten is an important principle, it has to be balanced against the need to maintain open justice. Clearly  theseproceedings would be self-defeating if the claimants were obliged, as the price of bringing their claims before the court, to submit every detail of the information they seek to protect to public scrutiny. The compromise reached by the judge in this case of a form of nomenclature that told a story and avoided confusion strikes the right balance between the interests of the parties and open justice.

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