(1) NT 1 v Google LLC
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 15 February 2018 |
| Neutral Citation | [2018] EWHC 261 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ15X0412728 |
| Date | 15 February 2018 |
and
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[2018] EWHC 261 (QB)
Mr Justice Warby
Case No: HQ15X0412728
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Tomlinson QC (instructed by Carter-Ruck) for the Claimants
Antony White QC & Catrin Evans QC (instructed by Pinsent Masons LLP) for the Defendant
Rupert Paines (instructed by in-house lawyers for The Information Commissioner) for the Intervenor
David Glen (instructed by in-house lawyers) for the Third Parties
Hearing date: 14 February 2018
Judgment Approved by the court for handing down (subject to editorial corrections)
In these two actions each of the claimants seeks orders prohibiting the defendant (Google) from continuing to return internet search reports which include information about the claimant which he claims is inaccurate, stale, irrelevant, and thereby infringe his data protection and privacy rights. The cases are about what is called the “right to be forgotten” which, in this context, is also referred to as “de-listing”. The two cases are due to be tried by me sequentially, starting on 27 February 2018. They came before Nicklin J for a Pre-Trial Review on 18 January 2018, at the end of which the Judge gave a public judgment: [2018] EWHC 67 (QB).
The issues in the case are outlined in that judgment at [3]–[11]. As there explained, the information at the heart of each claim concerns an old criminal conviction. It is not necessary to set out the issues in detail in this judgment. But it is worth adding this much. The claimants say that in some respects the information returned by Google is inaccurate, and in any event “way out of date and … being maintained for far longer than is necessary for any conceivable legitimate purpose …” The defences relied on by Google include an assertion that the information is substantially accurate, and the propositions that if its search results involved the processing or disclosure of personal data or private information about the claimants this was necessary for the exercise of freedom of expression by internet users and/or necessary for the purposes of its own legitimate interests and/or (in at least some respects) was otherwise in the substantial public interest. Google's defences involve reliance on a deal of background information about the claimants, and the convictions which they seek to have de-listed.
These are the first cases of their kind to come before the High Court in this jurisdiction. The issues raised are fairly described in submissions on behalf of the media as having “potentially profound and far-reaching ramifications on both a legal and general public interest level.” Accordingly, although as Nicklin J said at [12] “The very important principle of open justice applies to all cases that come before the courts …” is is fair to say, as he did, that “there is likely to be a substantial and obviously legitimate interest in these two cases because they are novel and because of the issues that are raised.”
Open justice is important for a number of reasons, but this case provides an illustration of one aspect of its value in the public interest. The Information Commissioner, who bears statutory responsibility for the data protection regime in this jurisdiction, has recently applied to intervene and make submissions in the proceedings, and is represented at this hearing on that application. The application has only recently been made because the Commissioner only came to know of the proceedings through reporting of the public judgment given by Nicklin J.
On the other hand, these proceedings 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. That is why the principal issue before Nicklin J at the PTR was whether (and if so what) reporting restrictions should be imposed. The media had not been given advance warning of the application for reporting restrictions. This, though not mandatory in advance of a reporting restriction order of this kind, is clearly desirable: see Nicklin J's judgment at [22]. The Judge made limited interim orders restricting the reporting of the case, but adjourned the PTR for a short period, requiring the media to be notified and given an opportunity to attend and make representations on the issue at the adjourned PTR: see [25]–[27]. (I should add that since the hearing before Nicklin J it has been established that the service which he referred to in paragraphs [23] and [24] is available for serving applications for reporting restrictions on the national media. It is no longer called CopyDirect. Details are to be found at http:/www.medialawyer.press.net/courtapplications/practicedirection.jsp
Nicklin J also considered that an adjournment was necessary to give the parties time to formulate more precise, and workable proposals and submissions as to how the balance should be struck between the need to protect the rights asserted by the claimants, and the imperatives of open justice. He did not consider the order proposed at that stage represented a workable regime, for the purposes of a trial: see [28]–[31].
This is the adjourned Pre-Trial Review, attended by Leading Counsel for the claimants, Leading Counsel for Google, Junior Counsel on behalf of a number of third party media organisations (the Media Parties) and Junior Counsel for the Information Commissioner.
I have had to address a variety of timetabling and minor case management questions, which it is unnecessary to deal with in this judgment. The hearing has concerned two main issues, which I should address:
(1) What modifications should be made to the interim reporting restriction order, to achieve the fair and workable balance that all now agree is necessary.
(2) Whether the Information Commissioner should be permitted to intervene and make submissions on the legal issues.
Intervention
It is convenient to deal first with the application to intervene, and I can do so shortly. The application is for permission to intervene by way of written submissions, and oral submissions presently estimated to take 1 hour, on six specified issues. These concern the impact of the E-Commerce Directive, Freedom of Expression under the European Convention on Human Rights and the EU Charter of Fundamental Rights and Freedoms, the processing of “sensitive personal data”, the impact of the right to be forgotten regime on spent convictions, a limitation issue, and an issue about rights under s 10 of the DPA. It is not necessary to set out the details of the issues here. All are agreed that they are relevant to the determination of the claims advanced in these proceedings.
The grounds for intervention include the following:
“4. The Commissioner is the statutory regulator under the DPA[Data Protection Act 1998]. She has a statutory duty to promote the following of good practice by data controllers and, in particular, to perform her functions to promote the observance of the requirements of the DPA by data controllers ( s.51 DPA). Following the judgment in Google Spain, she is also responsible for determining complaints made by data subjects in respect of refusals by internet search engines (“ISE”) to de-index websites in response to right to be forgotten requests (see further the Commissioner's powers of assessment under s. 42 DPA). The Commissioner has powers under s. 40 DPA to take action against an ISE in the event that she takes the view that it has breached the data subject's rights in connection with a right to be forgotten request, or otherwise (for example non-compliance with a valid cease processing notification given under s. 10 DPA). ”
5. The Commissioner does not usually involve herself in private party litigation. However, she has decided to apply to intervene in the instant cases because: (a) they raise general points of principle of acute relevance to all data subjects, and accordingly to the entire data subject cohort whose rights the Commissioner is duty bound to uphold; (b) the issues raised across these cases have a direct bearing on the way in which the Commissioner discharges her regulatory functions in connection with the right to be forgotten regime and (c) she considers that her submissions will be likely to assist the Court in resolving the issues before it.”
By the time the matter came before me the claimants and Google were agreed that these considerations were persuasive enough to justify intervention in writing and orally. I also agree. I approved a form of order in each case to give effect to that agreement.
Reporting restrictions
I turn to the issue of reporting restrictions.
Between the hearing on 18 January 2018 and today the claimants, Google and the Media Parties have worked on the creation of an appropriate draft order. Certain guiding principles have emerged as common ground between them, and I agree that any order should seek to achieve the following.
(1) First, the claimants should not be named but should be given pseudonyms, until judgment in the claims or further order in the meantime. This is necessary for the reason given by Nicklin J at [13]: “if they were named …, reports of this case would lead to the publication again of the very information which they argue should be allowed to be ‘forgotten’. In other words, without reporting restrictions, the Claimants would destroy by the legal proceedings that which they are seeking by those proceedings...
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