In the recent United Kingdom decision in the joined cases of NT1 and NT2 v Google and The Information Commissioner the High Court considered the applicability of the right to be forgotten to cases involving criminals. The two joined cases involved two businessmen (anonymised as NT1 and NT2) both previously convicted of criminal offences. They both sought an order directing Google to remove search results concerning their previous convictions on the basis that the results conveyed inaccurate, out-of-date and irrelevant information, failed to attach sufficient public interest and/or otherwise constituted an illegitimate interference with their right to be forgotten as established in the Google Spain decision. In Google Spain the CJEU interpreted the Charter of Fundamental Rights of the European Union, notably articles 7 and 8, as including a “right to be forgotten” entitling citizens to request information cease to be made available to the general public through search engine results where the information in the results complained of are inadequate, irrelevant or excessive as a result of the passage of time.
NT1 was convicted of criminal conspiracy to defraud customers as part of a property business and after serving a custodial sentence was released in the early 2000s. The trial judge dismissed NT1’s application for delisting noting, in particular, that the applicant had failed to meet the criteria established by Google as there was still a legitimate public interest in the information he sought to remove from Google remaining available (specifically as the applicant had placed misleading information relating to his reputation and business record). However, in NT2, Warby J granted the delisting order sought, noting that the information relating to NT2’s criminal conviction for authorising illegal surveillance as part of his previous employment had become irrelevant and insufficient under Google Spain and there was no longer a legitimate interest for the public that justified its continued availability.
While the decision was an important development it also appeared, at its delivery, limited to a narrow class of criminal convictions – sufficiently so to restrict its ability to act more broadly as a useful predictor of treatments of the right to be forgotten in cases involving criminal convictions. In particular the emphasis placed by Warby J on the length of the sentence and its relative placing on the scale of offences which may become “spent” seemed to indicate a restriction of a right to be forgotten to those criminal convictions of a relatively less serious nature with no clarification of whether convictions which were not, and would not, become spent would be amenable to delisting.
This, relatively conservative, position was seemingly reflected in the decision of the European Court of Human Rights in ML and WW v Germany in which the Court upheld the decision of Germany’s Federal Court of Justice declining to order three news outlets to remove or anonymise material related to the applicants’ previous conviction for murder.
ML and WW, who are half-brothers, were convicted of murdering a popular actor in 1993 and were sentenced to life in prison but released on probation in 2007 and 2008 respectively. Following their release, the applicants sought court orders requiring three news organisations – Deutschlandradio, and the publications Der Spiegel and Mannheimer Morgen to remove or anonymise their coverage of the applicants. In 2008 the Hamburg Regional Court granted the relief the applicants sought, emphasising ML and WW’s interest in reintegration. On appeal, the Court of Appeal upheld the finding, but the ruling was subsequently overturned by the Federal Court of Justice which noted the lower court had failed to consider the right to freedom of expression of the press outlets against whom orders were sought and the public’s right to information.
The Federal Constitutional Court later declined to consider the constitutional appeals lodged by the applicants against the ruling of the Federal Court of Justice and the applicants applied for relief to the ECtHR alleging the rulings of the German courts had violated their Article 8 rights.
In its decision, the ECtHR emphasised the public access to and protection of media archives protected by Article 10 of the Convention. While the court confirmed the existence of an Article 8 right to be forgotten against primary publishers as well as search engines, they specified that such a right was subject to limitations in light of the applicants’ right to respect for their private life, the rights of the press to freedom of expression and the public’s right to know, guaranteed under Article 10.
The Court considered the balancing to be struck between Articles of 8 and 10 by reference to the criteria established in Axel Springer, namely whether the information at issue contributes to a debate of general interest, the notoriety of the person and the events reported, the prior conduct of the applicant toward the media, the form, content and impact of the publication and, where photographs are an issue, the circumstances in which the images were captured. In the circumstances the court noted that the applicants could not maintain a claim under Article 8 in light of the prevailing, and weightier, interest in public access to information and freedom of expression under Article 10.
The decisions in both NT1/NT2 and ML/WW became part of a triptych with the decision of the Finnish Supreme Administrative Court in the case of Application 112 of 2018. In that case the applicant had been convicted of diminished responsibility murder, was sentenced to what the court deemed a “low” sentence of ten years and six months in prison and was released in 2017.
Following the applicant’s initial complaint, the Finnish Data Protection Ombudsman ordered Google Inc, to delist two URL search results. The first search result linked to an Internet discussion forum where the applicant’s name, mental health condition and sentence were discussed. The second result linked to a news service and mentioned the applicant’s name, sentence, and the finding of a state of reduced criminal responsibility. Google refused the request arguing the public had a strong legitimate interest in receiving information about the crime to ensure public and personal security and referenced the Article 29 Working Party Guidelines as well as the criteria established in Axel Springer but declined to elaborate a more specific set of criteria or balancing considerations for cases involving criminal convictions.
The court acknowledged in its ruling that the offence was “extremely serious” the applicant having stabbed the deceased individual numerous times. However, the court in its analysis focused on the need to consider that the information obtained from the complained of search results constituted sensitive personal data concerning the applicant’s health and state of mind.
As the results showed the applicant’s health status and the precise nature of his illness, the court ordered the removal on the basis that the information related to illness and disability and that personal data describing a disease or state of abnormality could not be classified as being in the public interest. The court specifically noted that the public’s interest in all kinds of things was, in principle, limitless and that disclosure represented a serious precedent for all people with Asperger’s syndrome and for citizens’ fundamental rights including the right to privacy in sensitive matters, especially when a judgment has been delivered.
The court thus found that the erasure of the search results could not be deemed to limit the public’s actual possibility for social discussion or free speech and the public interest in obtaining sensitive data concerning the applicant’s health and state of mind were not sufficient to outweigh the applicant’s right to protection of privacy and personal data.
Both NT1/NT2 and Application 112 were reported as new precedents which radically extended the right to be forgotten by extending its application to criminal convictions. In fact, on a close reading neither case nor ML/WW offer support for such a claim. Rather this triptych of cases illustrate a measured and cautious approach to extending the right to be forgotten to criminal convictions which offers little by way of readily transferrable criteria for other cases beyond the existing principles established in Axel Springer and the Article 29 Guidelines. In fact, the central take away of all three cases is arguably the extent to which such cases will turn on their particular facts and the proportional restriction on publicly available information delisting involves.
In fact, the case which offers the greatest potential for a radical expansion of the right to be forgotten is Case C-507/17 a request from the French data protection authority (CNIL) for a preliminary ruling on whether Google Spain may be interpreted to require a search engine operator to effect delisting in all the domain names used by its search engine so that the links at issue no longer appear, irrespective of the place from where the search initiated. The case has been greeted as a potential precedent for authoritarian regimes to seek to limit freedom of speech while the CNIL has argued that without a means of ensuring applicants’ right to be forgotten is universally enforced it is rendered effectively sterile. Google v CNIL follows the decision of the Canadian Supreme Court in Google v Equustek which established that Canadian courts may require Google to remove links globally.
Róisín Costello graduated from the Trinity College School of Law with first class honours and holds Masters degrees in International Affairs and Law from the Institut d’études politiques de Paris and Georgetown Law respectively. During her LLM at Georgetown Róisín was a research assistant for the Georgetown Centre on Privacy and Technology Law and a Consumer Protection and Public Interest clerk at the Electronic Privacy Information Centre in Washington DC. Following graduation Róísín worked in law and policy in London and Dublin including acting as a local expert for the World Bank Report on Women, Business and the Law, and as a policy analyst with the Institute for International and European Affairs. Róisín is currently undertaking her Ph.D. at Trinity College where her research focuses on the impact of digital technologies on fundamental rights and the Rule of Law in the United States and the European Union.
 NT1 and NT2 v Google and The Information Commissioner  EWHC 799 (QB). For a more detailed discussion of this case see, Costello, ‘The right to be forgotten in cases involving criminal conviction’ (2018)
 Case C- 131/12 Google Spain SL v Agencia Espanola de Proteccion de Datos (AEPD)
 at , .
 at , 
 ML and WW v Germany  ECHR 554 (in French).
 Notably, the application made by ML and WW pre-dated the decision of the CJEU in Google Spain and thus a delisting order was not sought.
 Note 5 at , -.
 It is significant that though the judgment represented a strong affirmation of the rights of primary publishers, the Court emphasised that search engine operators’ interests do not carry the same weight in cases involving criminal convictions, Ibid at .
 Ibid at .
 Ibid at -.
 ECLI:FI:KHO:2018:112, available at https://www.kho.fi/fi/index/paatoksia/vuosikirjapaatokset/vuosikirjapaatos/1534308651626.html. English summary at https://www.kho.fi/en/index/decisions/summariesofselectedprecedentsinenglish_0/2018/kho2018112.html.
 39954/08 Axel Springer AG v Germany  ECHR 227 (7 February 2012)
 Note 11.
 Case C-507/17 Google Inc. v Commission nationale de l’informatique et des libertés (CNIL)
 Google Inc v Equustek Solutions Inc  1 SCR 824.
 Though it is notable that the District Court for the Northern District of California refused to recognise such an order in Google LLC v Equustek Solutions Inc, 2017 WL 5000834 (ND Cal Nov 2 2017).