Winner of the 2019 Secondary Schools Competition, Ciara Walsh discusses developments in 'right to be forgotten' case law.

Secondary Schools Competition Winner 2019: The Right to be Forgotten

Ciara Walsh, Ard Scoil na nDeise

A legal case which I have heard about, is the joint case between two businessmen in the United Kingdom, who for their privacy are being referred to as NT1 and NT2. These two men have been involved in separate crimes in the past and have served their time in jail for those crimes, but for this case have joined together to go against Google and The Information Commissioner in the High Court.


Their case is a part of the right to be forgotten cases involving criminals. The right to be forgotten is a new concept that has been discussed and is being put into use in  the European Union.This issue has come from many Ex criminals wanting to move on and develop their life in an autonomous way. Without constantly being reminded of past mistakes and getting mistreated by fellow citizens in their everyday life due to what they may have done.


In theory the right to be forgotten addresses many big problems in this world we live in where we are very dependant on the digital resources we have. Nowadays everything is documented online whether you want it to be or not, so in turn it can prove very difficult to escape or even forget about your past. Also to make this matter worse all of this information online will live on forever in the cloud.


Both NT1 and NT2 were aiming for an order directing google to remove certain search results to do with their previous convictions. This was on the grounds that these results included inaccurate, out of date and irrelevant information. Without having any big public interest or otherwise constituted an illegitimate interference with their right to be forgotten, as established in the google spain decision.


Google Spain SL Google Inc. v Agencia Española de protección de Datos, Mario Costeja González (2014), is a decision by the court of justice of the European Union. It was stated that the internet search engine operator was responsible for the personal information which appears on web pages published by other third parties. The decision was ruled as a so-called right to be forgotten,even though the Court did not explicitly grant such a right but instead depending on the data subject’s rights concentrating on Article 7- respect for private and family life and Article 8 - protection of personal data, the charter of Fundamental Rights of the European Union. In this case both Article 7 & 8  were breached.




The first man NT1 was caught for conspiracy to defraud customers as a part of a property business, he was released in the early 2000s. His application was first dismissed by the trial judge as he had failed to meet the criteria established by Google as some of his information was still in public interest.


As for NT2, Warby J granted the delisting order sought, saying that information about his criminal conviction for authorising illegal surveillance as part of his previous employment has become irrelevant and insufficient under Google spain, as there was no longer a public interest in this information regarding NT2.


After this, the length of the sentence and its relative placing on the scale of offences seemed to indicate a restriction of a right to be forgotten. But to those criminal convictions of a relatively less serious nature would still not be sure if their information would be amenable to delisting. This, relatively conservative, position was used in making the decision of the European Court of Human Rights in ML and WW v Germany. In this the court made the decision that Germany’s Federal Court of Justice refusing the opportunity to remover or anonymise material related to the applicants’ previous murder conviction on three different newspaper articles.


ML and WW, were both convicted of murdering a popular actor in 1993 and were sentenced to life but got granted probation in 2008. After being released they both went ahead to try get the three articles removed. After already going to Court in 2008, the Federal Constitution Court later declined to consider the constitutional appeals lodged by both ML and WW against the ruling of the federal court of justice. They later went on to apply for relief to the ECtHR alleging the rulings of the german courts had violated their rights under Article 8. The court of human rights dismissed an Article 8 ‘right to be forgotten’ application in respect of the historic publication by the media of information concerning the murder conviction. Later the court conferred by using Article 10 - the freedom of expression, in light of the prevailing and weightier, interest in the public access to information.


NT1 Case decision

In coming to a decision on the right to be forgotten, the court used both Google Spain and the EU Working Party guidelines on its application. They came to the conclusion that because NT1 was a public figure due to his role in public life and the information regarding his previous crime was still a matter of public interest. Also because he had spent less time in jail then sentenced to  due to a change in the law. The court rejected NT1’s claim to delisting, misuse of private information and said there could be no question of compensation or damages.




NT2 Case decision

Unlike NT1’s case the court decided to uphold NT2’s claim of inaccuracy on the basis that the relevant article was misleading involving the nature and extent of his crime. The court said it falsely accused NT2 of profiting financially due to his crime. Due to this and the fact NT2’s role in business now is quite different to what he did before serving time makes his past offences less relevant so the court decided to uphold his request of delisting and grant his inaccuracy and right to be forgotten claims. I think that under these circumstances this decision was correct and I agree with it. Due to the fact that this information was not important anymore and was also partially wrong, which means allowing this man and his family to move on and forget about what happened is the right thing to do.


Going on these outcomes the judge stated that it will be very likely to see many more cases like this in the future, going on the fact that NT2 succeed as a way to reinforce this idea of the right to be forgotten after serving time for a crime committed.

In my opinion having read about this case and others like this I think that the right to be forgotten should definitely be an option that is allowed to criminals on the smaller scale. Everyone deserves a second chance and we should at least try help them move on and start over after serving their time. After all isn't that what going to jail is about? To help criminals understand what they did wrong and give them the opportunity to make up for their mistakes. So for someone to serve their time only to come out after, to a life a lot worse then they went in, will only lead them to start committing more crimes because they have nothing else. They will feel like they have no reason to focus on bettering themselves due to constantly being reminded of past mistakes. I also think that we should try put less up on social media and in the media about criminals that is not hundred percent true and cannot be backed up with facts and evidence. Unless the information is relevant to the public it should stay some bit private. Also for the family of that convict it is not fair on them to constantly feel like people are talking about them and judging them. It's just not fair in my opinion, I believe in second chances and think most people deserve them.


‘Sometimes second chances work out better than the first because you learn for your mistakes’

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