The Round-Up: The Right to Be Forgotten

The judge rejected a similar claim brought by a second businessman.

Image Credit: Guardian.

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 [2004] UKHL 47 [2005] 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 [170]. Furthermore, NT2 was considered to have shown genuine remorse, and importantly, to no longer represent a significant threat to the public: these mitigating circumstances could not be said to apply to NT1.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 [228].

In The News


  • 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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One thought on “The Round-Up: The Right to Be Forgotten

  1. In my opinion the making of Court Orders that cannot be enforced are a waste of public resources. Such Orders fail to fully understand how the internet works. Once material is published on the web it is distributed worldwide and will resurface time and again in different languages and in different jurisdictions – as well as being republished illegally and anomalously. If we take as just one example In September 2011 the website (SfH) was closed down after Law Society boss Desmond Hudson took legal action against site owner Mr Rick Kordowski (RK). Hudson claimed to be acting on behalf of all solicitors. This site is still running today. There are many other headline bans on publication Spycatcher by MI5 Peter Wright, – Once the story gets into the internet all this does is it raised the public interest and what was once limited to “interested parties” becomes widespread interest. Now we can all find out the details as curiosity and the Right to Know Trumps the right to be forgotten.

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