NT 1 & NT 2 v Google LLC

An internet search-engine operator cannot ordinarily invoke the journalism exemption merely because it facilitates access to journalistic material published by others. A delisting request requires a fact-sensitive balance between privacy, rehabilitation, freedom of expression and the public interest in access to information.

A spent conviction is normally a weighty factor favouring delisting, but is not determinative. The court must assess the seriousness and present relevance of the offending, the data subject’s current role, conduct and any actual impact on private or family life. Inaccuracy is assessed by reading the publication in context, and remedies remain discretionary.

Where historical criminal information has become out of date and lacks sufficient present relevance, continued name-search indexing is unjustified. A controller may nevertheless avoid damages if it took reasonable care within Data Protection Act 1998 section 13(3).

Two businessmen sought orders requiring Google to delist search results linking to third-party reports of their old convictions, together with compensation. Both convictions had become spent under the Rehabilitation of Offenders Act 1974.

NT1 complained of three publications concerning serious business-related dishonesty. NT2 complained of eleven publications concerning offences of phone tapping and computer hacking. One publication concerning NT2 inaccurately portrayed the nature and extent of his criminality.

The claims raised the application of Google Spain SL & another v Agencia Espanola de Proteccion de Datos (AEPD) and another Case C-131/12, the journalism exemption in the Data Protection Act 1998, the effect of spent convictions, misuse of private information, and compensation.

1. NT1’s claim was dismissed. The claims were not an abuse of process merely because reputational harm was material. Their substance extended beyond reputation and invoked the distinct data-protection and privacy regimes.

2. Google could not rely on the journalism exemption in Data Protection Act 1998 section 32. A search engine’s automated indexing and presentation of all kinds of third-party material serves its own distinct commercial purpose. It is not processing undertaken only for journalism, or solely to facilitate journalistic publication by others. Google had also not established the required reasonable beliefs under section 32(1)(b) and (c).

3. For sensitive data concerning convictions, Schedule 3 condition 5 was satisfied. A person who deliberately commits crime takes deliberate steps whose ordinary consequence is public prosecution, trial and reporting. The issue is not whether the offence was committed in public; that distinction belongs to the later proportionality assessment.

4. Accuracy under the Fourth Data Protection Principle is assessed contextually. The court should determine the meaning conveyed by the publication as a whole, rather than isolate words or headlines. NT1 did not prove material inaccuracy. Although part of the second article was not a fair and accurate court report, he failed to establish that its substantive implication of guilt in the further fraud was inaccurate.

5. The Google Spain balance begins with neither privacy nor freedom of information taking automatic precedence. A spent conviction normally weighs heavily for delisting, but section 4 of the Rehabilitation of Offenders Act 1974 states a policy, not an absolute right to confidentiality. Where the complaint substantially concerns reputation, the policy reflected in section 8 also matters.

6. NT1’s serious dishonesty, continuing business activity, lack of acceptance of guilt, and misleading online claims about integrity meant that the criminal information retained sufficient public relevance. The interference with his private life was modest and did not justify delisting. His misuse claim and damages claim consequently failed.

7. NT2’s claim succeeded, save as to damages. The newspaper item inaccurately portrayed his criminality and was to be delisted. The other criminal information had become out of date and of insufficient present relevance. NT2 had admitted his wrongdoing, showed genuine remorse, posed no demonstrated risk of repetition, and his later business activities did not make the conviction materially relevant. He had a reasonable expectation of privacy, and continued indexing was an unjustified misuse of private information. Google had, however, taken reasonable care, so no compensation or damages were payable.

First-instance merits judgment. Earlier procedural anonymity rulings were made in the same proceedings: [2018] EWHC 67 (QB) and [2018] EWHC 261 (QB).