Defamation / Reputation, Privacy, Data Protection and Retention
Don Domingo v. Google Spain
Closed Mixed Outcome
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The England and Wales High Court giving its first decision on the “right to be forgotten” ordered Google to delist search results referring to the spent conviction of a businessman known as NT2 but rejected a similar request made by a second businessman, NT1. The claimants had been convicted of criminal offences many years ago and complained that search results returned by Google that featured links to third-party reports about the convictions were inaccurate and/or old, irrelevant and of no public interest, or otherwise an illegitimate interference with their rights. The claims were made under data protection law and the English law tort of misuse of private information. The Court rejected NT1’s request based on the fact that he was a public figure with a role in public life so that the crime and its punishment could not be considered of a private nature, but was regarded as a matter of public interest, specifically a business crime, its prosecution and punishment. Moreover the Court said that NT1 had not accepted his guilt, had misled the public and the Court, and shown no remorse. In contrast, the Court upheld NT2’s delisting claim, reasoning that his crime did not involve dishonesty, his punishment had been based on a plea of guilt, and information about the crime and its punishment had become out of date, irrelevant and of no sufficient legitimate interest to users of Google to justify its continued availability.
The Court granted NT1 permission to appeal: “It is quite likely that there will be more claims of this kind, and the fact that NT2 has succeeded is likely to reinforce that,” the Judge said.
In the late 1980s and early 1990s, NT1 was involved with a controversial property business which consisted of offering services and credit to consumers and companies in connection with property. In the late 1990s, after a trial of a criminal conspiracy connected with those business activities, he was sentenced to a four-year term of imprisonment. Reports of these facts and related matters were published at that time, and links to the reports were made available by Google Search. Even after NT1 was released on licence having served half his custodial sentence, and the penalty had become spent due to a retrospective change in the law in 2014, the reports remained online and links continued to be returned by Google Search.
On June 28, 2014, NT1 asked Google to remove six links. On October 7, 2014, Google replied agreeing to block just one link, but refusing to block the other five. NT1 asked Google to reconsider its decision, but it refused. Then, January 26, 2015, NT1 asked Google to cease processing links to two media reports. Again, in April 2015, Google refused. On October 2, 2015, NT1 brought these proceedings, seeking an order for the blocking 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.
In the early 2000s, NT2 was involved in a controversial business which had attracted public controversy for environmental reasons. More than ten years ago, NT2 pleaded guilty to two counts of conspiracy in connection with the business, and received a short custodial sentence. The conviction and sentence were published as news in the media at the time. After six weeks in custody, NT2 was released on licence. The criminal penalty ended over ten years ago. The original reports remained online and the related links were displayed by Google.
NT2 asked Google to remove the links. On April 14, 2015, the first de-listing request concerning eight links was submitted to and subsequently refused by Google on the basis that the links in question “relate to matters of substantial public interest to the public regarding [NT2’s] professional life”. On October 2, 2015, NT2 issued these proceedings, claiming relief in respect of the same eight links. In the course of the proceedings NT2 added three other links to the claim.
Both claimants sued Google for breach of the Data Protection Act 1998 (‘DPA’) and for misuse of private information.
Mr. Justice Warby, sitting as as single judge in the High Court, set out the main issues to be determined as follows:
“(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.”
The Court rejected the inaccuracy claim with reference to data protection and defamation law. It said that according to article 70 DPA, information can be considered inaccurate when it is misleading and that in a libel action involving truth the Court had to determine the single natural and ordinary meaning the statement would convey to the ordinary reader. In this case the Court decided that NT1 had failed to make out any of the six complaints of inaccuracy made in respect of the three impugned links: it considered that the headline of the first article read as a whole gave a clear account regarding the conviction despite the headline suggesting involvement in a conspiracy; NT1 had not shown that the second article had shown a false impression of his role in the management of his business; and the third claim, regarding the statement that his business “was placed temporarily in administration, the only creditor was then paid in full and the company was reinstated” did not constitute personal data of the claimant. The last three complaints related to the same article, namely that it meant that the claimant was guilty of a second conspiracy despite its inaccuracy. However, the Court rejected the claim on the basis that the claimant did not provide enough arguments in support of the inaccuracy claim and, in any event, although he was not convicted of participation in the second conspiracy, nor he was acquitted.
Regarding privacy, the Court rejected Google’s claim that it could rely on the journalistic exemption as provided for by article 32 DPA, because the search engine had not processed the data for journalistic purposes and there was no evidence that Google ever considered the public interest in the continued publication of the links in question at any time before NT1 complained.
In reaching its decision on the right to be forgotten claim, the Court relied both on Google Spain and the EU Working Party’s guidelines on its application. It found that NT1 was a public figure with a limited role in public life, the information about his crime and punishment could not be considered of a private nature relating to his personal life, but was a matter of public interest, namely a business crime, its prosecution and punishment. Further, NT1 had no expectation of privacy because the information originally appeared in the context of crime and court reporting in the national media, which was a natural and foreseeable result of the claimant’s own criminal behaviour. Importantly, NT1 had spent less time than anticipated in prison because of a change in the law and his business career since leaving prison made the information about his past relevant to the continuing assessment of his honesty by members of the public.
The Court rejected NT1’s claim for delisting, misuse of private information and said there could be no question of compensation or damages.
The Court upheld NT2’s single claim of inaccuracy on the basis that the relevant article was misleading regarding “the nature and extent of the claimant’s criminality”. In particular, the Court said that it falsely suggested that NT2 profited financially from his criminality which he sought to hide from creditors.
NT2 complained about 11 source publications in his privacy claim. As in NT1, the Court said Google could not rely on the DPA’s journalism exemption. It similarly followed its “right to be forgotten” reasoning in NT1 and, in doing so, upheld NT2’s delisting claim observing in particular that information about the crime and punishment information had become out of date, irrelevant and of no sufficient legitimate interest to users of Google to justify its continued availability. The conviction was always going to become spent, and it did so in March 2014. Moreover, NT2’s current business activities were in a field quite different from that in which he was operating at the time of his crime and his past offending was of little if any relevance to anybody’s assessment of his suitability to engage in his current business activity now, or in the future. Consequently, the Court upheld NT2’s delisting request.
As in the NT1 case, the Court dismissed the misuse of private information claim. However, although the Court upheld NT2’s inaccuracy and right to be forgotten claims, it accepted Google’s defense under DPA 13(3), namely that it had taken reasonable care by having processes in place to comply with the relevant requirements for data processing.
Granting permission to appeal in the case of NT1, the judge added: “It is quite likely that there will be more claims of this kind, and the fact that NT2 has succeeded is likely to reinforce that.”
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Freedom of expression is restricted with the granting of delisting in NT2,but expanded with its refusal to delist in the case of NT1. In reaching his decision, the Judge stressed that while a spent conviction is a weighty factor in favor of delisting, privacy will not always prevail in such a case. On the contrary, “the specific rights asserted by the individual concerned will still need to be evaluated, and weighed against any competing free speech or freedom of information considerations, or other relevant factors, that may arise in the particular case”. This was demonstrated in these two cases where the current and past business activities, length of sentence and demonstration of remorse of each claimant were taken into consideration in reaching the different conclusions.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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