About this case:

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Sitting in the High Court in Belfast, Lord Justice Stephens refused leave to serve notice of a writ of summons on Google Inc. because of its refusal to take down links to news articles about an offender’s previous convictions.

Background

The Court heard that the plaintiff’s offending started in 2006 when he was 15 years old, of sending sexualised text messages to another boy in his class – now spent under the terms of the Rehabilitation of Offenders (Northern Ireland) Order 1978.

The Court heard that the plaintiff by the age of 24 had a total of 74 convictions of which only 2 are spent, and had been the subject of at least 26 articles in newspapers across Northern Ireland in respect of his unspent convictions.

In 2012 the plaintiff changed his first name by deed poll in order to try to escape the publicity that had surrounded his previous criminal activity.

In 2013 his SOPO was removed.

The plaintiff believed that the Google Search results and particularly search results in relation to his sexual offending whilst under 18 led to a number of distressing incidents including an attack on his home. In 2014 he requested Google Inc. to remove URLs from search results produced when searching for his name.

Google Inc. declined to de-list any of the URLs notified by the plaintiff on the basis that the inclusion of the news articles in Google Search’s results was still relevant and in the public interest.

In February 2016, the plaintiff’s solicitors wrote to Google Inc, incorporated in the USA, asking it to cease processing “information relating to our client’s conviction in respect of sexual offences when he was a minor.” The letter asserted that Google Inc.’s processing of information in respect of this conviction had caused the plaintiff damage and distress in the form of “the harassment of our client by people who obtain the said information and consequent loss of employment by our client.”

In the High Court, the application was based on the propositions that the defendant had committed the torts of misuse of private information, breach of confidence and breach of the Data Protection Act 1998. The plaintiff also sought an injunction ordering Google Inc to stop processing personal data relating to him which could produce search results revealing sexual offences committed by him while a child.

Misuse of Private Information

Lord Justice Stephens said that, in this case, the convictions which have been revealed by Google Search are all convictions which are not “spent” including the sexual offences committed when the plaintiff was under 18 in relation to which he was convicted on 16 November 2010:

“Usually there can be no expectation of privacy in such offences which are not spent. The reason why the sexual offences are not “spent” is that the statutory rehabilitation period has not expired and it has been extended as the plaintiff is a notorious recidivist. In relation to the question as to why this case should be taken out of the usual it was submitted that the sexual offences involved particularly intrusive personal material relating to the plaintiff’s sexual orientation with a disproportionate effect on the plaintiff. The fact that an offence reveals a particular sexual orientation on the part of an offender, whatever that orientation may be, is not a most compelling circumstance so as to require open justice to be outweighed by the protection of the offender. The public interest in disclosure is also demonstrated by the fact that the plaintiff has sought to associate his name with a children’s charity. That charity and others like it should have access at the very least to information about his unspent sexual convictions. Also the public interest in disclosure is demonstrated by the fact that the plaintiff’s recidivism has been raised as an issue of public concern in the Assembly. I do not consider that there is any disproportionate effect on the plaintiff. There is no arguable case as to an expectation of privacy in relation to the convictions which are not “spent”.”

Lord Justice Stephens concluded that there is no serious issue to be tried in relation to the plaintiff’s claim for misuse of private information and any application to serve notice of the writ of summons out of the jurisdiction on Google Inc. is refused.

Breach of the Data Protection Act 1998

In the alternative the plaintiff sought to frame his case relying on the Data Protection Act 1998. Google Inc. accepted that the information processed in this case is sensitive personal data as it consists of information as to the commission by the plaintiff of an offence. It was also conceded that Google Inc. is a data controller and that it is established in the UK for the purposes of the Data Protection Act 1998 in relation to its provision of Google Search.

Lord Justice Stephens said there was no suggestion that processing the data was not for the legitimate interest pursued by the data controller. The only issue was whether the processing was unwarranted in the particular case of the plaintiff by reason of prejudice to his rights and freedoms or legitimate interests.

Lord Justice Stephens held that there is no triable issue as to the invasion of any of the plaintiff’s legal or equitable rights there was no good cause of action and therefore no reasonable probability that the plaintiff would obtain an injunction. The application was therefore refused.

Lord Justice Stephens refused the plaintiff’s application for leave to serve notice of the writ out of the jurisdiction on Google Inc.