Google Faces England's First `Right to Be Forgotten' Trial
The Google Inc. logo hangs illuminated at the company’s exhibition stand at the Dmexco digital marketing conference in Cologne, Germany (Photographer: Krisztian Bocsi/Bloomberg)  

Google Faces England's First `Right to Be Forgotten' Trial

(Bloomberg) -- Google Inc. is set for its first battle in a London court over the so-called “right to be forgotten” in two cases that will test the boundaries between personal privacy and public interest.

Two anonymous people, who describe themselves in court filings as businessmen, want the search engine to take down links to information about their old convictions.

One of the men had been found guilty of conspiracy to account falsely, and the other of conspiracy to intercept communications, Judge Matthew Nicklin said at a pre-trial hearing Thursday. Those convictions are old and are now covered by an English law -- designed to rehabilitate offenders -- that says they can effectively be ignored. With a few exceptions, they don’t have to be disclosed to potential employers.

“This is the first time that the English court is going to decide the issue of the right to be forgotten,” Nicklin said.

The search-engine giant has already become embroiled in battles at the European Union’s top court over the right to be forgotten. The principle -- created by the EU’s highest court in a precedent-setting ruling in May 2014 -- allows people to ask for links to online information about them to be removed from search results if it’s outdated or irrelevant. The ruling is only valid in the 28-nation bloc, but Google has clashed with privacy regulators over attempts to apply it beyond the EU.

“We work hard to comply with the right to be forgotten, but we take great care not to remove search results that are clearly in the public interest and will defend the public’s right to access lawful information,” a Google spokeswoman said. 

Lawyers for the plaintiffs didn’t comment.

Not Celebrities

Nicklin said Thursday that while the two cases were not related, they raised the same legal issues. The first trial, in which the person challenging Google to remove information is known as NT1, will start on Feb. 27 and the second, in which the plaintiff is known as NT2, will start on March 13. Nicklin said the plaintiffs weren’t celebrities or politicians and have been “rehabilitated” since their convictions.

NT1 has been threatened in public places by people referring to the content that Google links to, “and seeking to extract money from him in consequence,” his court filings say. He “has been and continues to be treated as a pariah in his personal, business and social life and has been unable to form any new friendships or personal relationships,” they say.

‘Adverse Attention’

NT2’s papers say some financial institutions are unwilling to deal with him “on private or commercial business” after looking him up on Google. The search engine results have attracted “adverse attention” to him and by association to members of his close family.

The case concerns an “area of the law in which two human rights come into conflict,” Nicklin said. “The right to be forgotten is a dimension of the right to privacy and it conflicts with the right of freedom of expression.”

He said a U.K. law from 1974 meant that, for all but the most serious offenses, people with convictions shouldn’t “have a lifelong ‘blot’ on their record but should be able to live without that shadow.” The internet “provides a challenge” to that right, he said, but also noted that some people were concerned that the right to be forgotten “might lead, in effect, to censorship.”

Google has “staked quite a lot of resources” on trying to do a good job of deciding when to approve requests for links to be taken down, said George Brock, a journalism professor at City, University of London and the author of a 2016 book about the right to be forgotten. He said Google had been “opaque” about its approach to making those decisions. If this case shed light on how it reached the decisions, “it would be a real breakthrough,” he said.

Super-Injunctions

The men are being represented by the law firm Carter Ruck. It has defended clients in privacy and libel actions and was one of the first firms to use super-injunctions, court orders that prevent publication of any confidential information relating to a person or an issue and also any existence of the order itself.

The pair’s court papers say that revealing their identity would “defeat the object of the claims.”

Google has publicly raised the alarm about risks to freedom of speech that it says are posed by the right to be forgotten. Two separate European Court of Justice cases about that right “represent a serious assault on the public’s right to access lawful information,” Google’s general counsel, Kent Walker, said in a blog post in November.

The cases are: NT1 v. Google and NT2 v. Google, High Court of Justice, Queen’s Bench Division, Case No.’s HQ15X04128 and HQ15X04127.

©2018 Bloomberg L.P.

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