NT 1 and another v Google LLC (Information Commissioner intervening)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 13 April 2018 |
| Neutral Citation | [2018] EWHC 799 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case Nos: HQ15X04128 HQ15X04127 |
| Date | 13 April 2018 |
and
[2018] EWHC 799 (QB)
Mr Justice Warby
Case Nos: HQ15X04128 HQ15X04127
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 & Jonathan Barnes (instructed by Carter-Ruck) for the Claimants
Antony White QC and Catrin Evans QC (instructed by Pinsent Masons LLP) for the Defendant
Anya Proops QC & Rupert Paines (instructed by in-house lawyers for The Information Commissioner) for The Intervenor
Hearing dates: 27–28 February, 1, 6–7, 12, 14 March 2018
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
These two claims are about the “right to be forgotten” or, more accurately, the right to have personal information “delisted” or “de-indexed” by the operators of internet search engines (“ISEs”).
The claimants are two businessmen who were convicted of criminal offences many years ago. The defendant, (“Google”), needs little introduction. It operates an ISE called Search which has returned and continues to return search results that feature links to third-party reports about the claimants' convictions. The claimants say that the search results convey inaccurate information about their offending. Further, and in any event, they seek orders requiring details about their offending and their convictions and sentences to be removed from Google Search results, on the basis that such information is not just old, but out of date, and irrelevant, of no public interest, and/or otherwise an illegitimate interference with their rights. They also seek compensation for Google's conduct in continuing to return search results disclosing such details, after the claimants' complaints were made. Google resists both claims, maintaining that the inclusion of such details in its search results was and remains legitimate.
This public judgment is given after the trial of both claims. In this judgment the claimants are anonymised, for reasons which will probably be obvious from this short summary of the cases, but are explained in more detail in judgments given at the Pre-Trial Reviews: [2018] EWHC 67 (QB) (“the First PTR Judgment”) and [2018] EWHC 261 (QB) (“the Second PTR Judgment”). In short, anonymity is required to ensure that these claims do not give the information at issue the very publicity which the claimants wish to limit. Other individuals and organisations have been given false names in this judgment for the same reason: to protect the identities of the claimants.
I have prepared a separate, private judgment in each case containing details that may be important to help the parties and any Court that has to review this case in future, but which tend to identify the claimants. The contents of the private judgments may not be published. That is because, whatever the outcome of these claims, it is not necessary or proportionate for the Court to place on the public record personal data which either is or may at some stage become private, and which in any event is not so generally accessible that the Court should proceed on the basis that its judgment can add nothing to the impact on the claimant. Cf L v The Law Society [2010] EWCA Civ 811 [2] (Sir Anthony Clarke MR).
THE CASES IN A NUTSHELL
The essential facts of NT1's case are that in the late 1980s and early 1990s, when he was in his thirties, he was involved with a controversial property business that dealt with members of the public. In the late 1990s, when he was in his forties, he was convicted after a trial of a criminal conspiracy connected with those business activities, and sentenced to a term of imprisonment. He was accused of but, never tried for, a separate conspiracy connected with the same business, of which some of its former staff were convicted. There was media reporting of these and related matters at that time. Links to that reporting were made available by Google Search, as were other links, including some to information on a parliamentary website. NT1 was released on licence after serving half his sentence in custody. The sentence came to an end in the early 21 st century. Some years later it became a “spent” conviction, a term I shall explain. The reports remained online, and links continued to be returned by Google Search. In due course, NT1 asked Google to remove such links.
His first “de-listing” request was submitted to Google on 28 June 2014. It asked for the removal of six links. Google replied on 7 October 2014, agreeing to block one link, but declining to block any of the other five. NT1 asked Google to reconsider, but it stood by its position. On 26 January 2015, NT1's solicitors wrote to Google requiring them to cease processing links to two media reports. In April 2015, Google replied with a refusal. On 2 October 2015, NT1 brought these proceedings, seeking orders for the blocking and/or erasure of links to the two media reports, an injunction to prevent Google from continuing to return such links, and financial compensation. In December 2017, NT1 expanded his claim to cover a third link, relating to a book extract covering the same subject-matter, in similar terms.
The facts of NT2's case are quite separate from those of NT1. The only connections between the two cases are that their factual contours have some similarities, they raise similar issues of principle, and they have been tried one after the other with the same representation. In the early 21 st century, when he was in his forties, NT2 was involved in a controversial business that was the subject of public opposition over its environmental practices. Rather more than ten years ago he pleaded guilty to two counts of conspiracy in connection with that business, and received a short custodial sentence. The conviction and sentence were the subject of reports in the national and local media at the time. NT2 served some six weeks in custody before being released on licence. The sentence came to an end over ten years ago. The conviction became “spent” several years ago. The original reports remained online, and links continued to be returned by Google Search. NT2's conviction and sentence have also been mentioned in some more recent publications about other matters, two of them being reports of interviews given by NT2. In due course, NT2 asked Google to remove such links.
The first de-listing request on NT2's behalf was submitted by his solicitors on 14 April 2015. It related to eight links. Google responded promptly by email, on 23 April 2015. It declined to de-list, saying that the links in question “relate to matters of substantial public interest to the public regarding [NT2's] professional life”. On 24 June 2015, NT2's solicitors sent a letter of claim and on 2 October 2015 they issued these proceedings, claiming relief in respect of the same eight links as NT2 originally complained of by NT2. In the course of the proceedings, complaints about a further three links have been added to the claim. The claim advanced by NT2 therefore relates to eleven items. NT2 claims the same heads of relief as NT1.
The main issues in each case, stated broadly, are (1) whether the claimant is entitled to have the links in question excluded from Google Search results either (a) because one or more of them contain personal data relating to him which are inaccurate, or (b) because for that and/or other reasons the continued listing of those links by Google involves an unjustified interference with the claimant's data protection and/or privacy rights; and (2) if so, whether the claimant is also entitled to compensation for continued listing between the time of the delisting request and judgment. Put another way, the first question is whether the record needs correcting; the second question is whether the data protection or privacy rights of these claimants extend to having shameful episodes in their personal history eliminated from Google Search; thirdly, there is the question of whether damages should be paid.
Those are novel questions, which have never yet been considered in this Court. They arise in a legal environment which is complex, and has developed over time. Many of the legislative provisions date back to before the advent of the internet, and well before the creation of ISEs. As often happens, statute has not kept pace with technical developments. I have however had the benefit clear and helpful submissions not only from Mr Tomlinson QC and Mr Barnes for NT1 and NT2, and Mr White QC and Ms Evans QC for Google, but also from Ms Proops QC and Mr Paines on behalf of the Information Commissioner (“ICO”), whom I allowed to intervene in the case: see the Second PTR Judgment at [9–11]. During the trial process some of the complexities that appeared to loom large at the outset have either disappeared, or receded into the background. The trial has ended with quite a large measure of agreement as to the principles I should apply, albeit not as to the answer I should reach by doing so. Mr Tomlinson and Mr White both submitted that on the facts their respective clients' cases were “overwhelming”. I find the matter more finely balanced.
I have heard factual evidence from three witnesses. I heard from NT1 and NT2 themselves, and from Stephanie Caro, a “Legal Specialist” at Google. Ms Caro is not a lawyer. Her primary responsibility is to assess or oversee the assessment of de-listing requests. All three witnesses gave oral evidence and were cross-examined. Ms Caro gave evidence once only. By agreement, the oral evidence she gave in the NT1 stands as her evidence in the NT2 action, in addition to her two...
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