The Round-Up: The Right to Be Forgotten
16 April 2018
NT 1 & NT 2 v Google LLC: A businessman has succeeded in a landmark ‘right to be forgotten’ action against Google, resulting in an order for the de-listing of search results relating to his spent conviction. Warby J heard the cases of two anonymous businessmen (NT1 and NT2), both with spent convictions, and upheld the latter’s claim. Each made further claims of misuse of private information: again, NT2’s claim was found to succeed.
This tort has two essential ingredients: whether the claimant enjoys a reasonable expectation of privacy regarding the information in question, and whether the individual’s Article 8 rights must yield to the publisher’s Article 10 rights.
The ‘right to be forgotten’ was established in the CJEU’s 2014 ‘Google Spain’ ruling. It applies to information which is no longer relevant or in the public interest, but which disproportionately impacts on the individual. In addition to requiring a balance of Article 8 (the right to private life) and Article 10 (the right to freedom of expression) of the ECHR, three further Charter rights were in play: the protection of personal data, the freedom to conduct a business, and the right to an effective remedy.
Warby J applied the ‘ultimate balancing test’ of Articles 8 and 10 set out by Lord Steyn in Re S  UKHL 47  1 AC 593, rejecting the claimants’ submission that the scales were tilted in favour of the data subject as a matter of principle. Distinguishing factors between the two defendants were namely that NT2’s Article 8 rights were more substantially engaged, specifically due to his young family. NT1’s relationship with his adult children, it was conceded, did not engage ‘family life,’ and although his Article 8 rights were found overall to be engaged, they did not ‘attract any great weight’ in the balancing exercise . Furthermore, NT2 was considered to have shown genuine remorse, and importantly, to no longer represent a significant threat to the public: these mitigating circumstances could not be said to apply to NT1. Finally, NT2’s inaccuracy claim was upheld. In all the circumstances, de-listing was appropriate for NT2. However, neither defendant was entitled to damages or compensation – Warby J found that it Google was committed to compliance with the relevant requirements, and that it would be harsh to conclude that they had failed to take reasonable care .
In The News
- Trinidad and Tobago’s High Court has ruled two sections of the Sexual Offences Act prohibiting ‘buggery’ and ‘serious indecency’ between two men to be “unconstitutional, illegal, null, void, invalid and…of no effect to the extent that these laws criminalise any acts constituting consensual sexual conduct between adults”. The case, which was brought by LGBT activist Jason Jones, follows a similar ruling in Belize in 2016, and is hoped to spark a series of similar actions across the Caribbean.
- A Paris-based Yemeni human rights group has launched a lawsuit against the visiting Saudi Prince under universal jurisdiction. The criminal suit accuses the Prince of complicity in torture for his role in airstrikes, and claims that he knowingly targeted civilians.
- The total number of people with disabilities granted legal aid in welfare cases has dropped from 29,801 in 2011-12 to just 308 in 2016-17, a parliamentary answer has revealed. The Guardian writes that the figures show that people with disabilities are losing out on legal aid in 99% of benefits disputes.
- UCL European Institute are hosting the following conference: Revisiting Sovereignty in Europe? The Catalan Crisis in Context on 17th April. Programme and registration here.
- A book colloquium on Human Trafficking and Slavery Reconsidered: Conceptual Limits and States’ Positive Obligations in European Law will take place in Oxford on 3rd May. More information here.
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