Important Law Change…but Will Google Listen?

The Government have announced significant changes governing the rules on spent convictions. This is important for people who may have committed a crime some years ago but want to move on with their lives.

The new law does two things.  First of all, it shortens the time for a conviction to be “spent.” For example, those who were given a jail sentence of under 6 months used to have to wait 2 years from the end of their sentence before their conviction was spent, while those who were sentenced to over 6 months had to wait 4 years. Now, those in custody for under a year will only have to wait a year before they do not have to declare it.

It also abolishes the cap of 4 years for a conviction to be spent. In the past those who had been sentenced to more than four years in prison would never have a spent conviction, now this has been lifted and there is no limit to rehabilitation.

In order to keep the public safe, this change excludes serious sexual, violent of terrorist offences that will never be spent.

Despite this positive news, the question is whether Google and other search engines will abide by it. In the past they have taken a subjective view on the morality in any given case. They argue that keeping outdated and unlawful information available to all is in the public interest, regardless of the will and opinion of elected MPs whose job it is to determine what is in the public interest.

In this case, it makes sense for those who have served their time and have spent sentences to be able to find work, pay taxes and move on instead of being forced to claim benefits and be lured back into law breaking.

Hopefully Google and others will accept this new law and allow people a second chance to contribute to society, rather than being continually haunted by their previous mistakes. This, surely, is in the public interest.

Who Determines the Public Interest Google or the Government?

The Rehabilitation of Offenders Act is nearly 50 years old. Passed into law in 1974, it aims to give those convicted of a criminal offence a second chance; it allows people with a spent conviction to move on with their lives as if their offence never happened.

A spent conviction only applies to smaller crimes and nobody jailed for more than four years will qualify. It means that a certain amount of time (up to seven years) must pass without re-offending for a conviction to be spent.

When you consider that around one third of men have a non-motoring criminal conviction by the time they retire, this makes good public policy. You allow people to get a job and progress with their careers, thereby getting more tax revenue rather than paying them benefits. It helps stop re-offending: studies show that people who leave jail with no hope of a job and moving on with their lives are more likely to commit another crime. This is in the public interest: more revenue from taxes, saving thousands of pounds in prison costs, and fewer victims of crime.

This is the essence of the policy and it worked well in the past.  Now, however, it is in jeopardy not because of any change of heart from the government but because Google and other search engines sometimes refuse to remove outdated reports about people’s old convictions which remain online.

Search engines cite the public interest in order to justify their behaviour. What is worse is that the Information Commissioner’s Office (ICO) often seems to back them up. This flies in the face of democracy and public policy. We have a representative democracy; MPs are elected by the public to act in the public interest. In this case, they voted for people with spent convictions to be able to move forward without having to mention their offence. Search engines (and the ICO) are unelected but think they know better than parliament about what constitutes the public interest. They often confuse the public interest with what interests their profits and shareholders.

This behaviour persists despite the High Court ruling in NT1 & NT2 v Google LLC in 2018.

This landmark judgment basically says that mentioning a person’s spent conviction is contrary to data protection laws. It is about time that search engines look at what the public interest actually is, according to Parliament and the High Court, and stop breaking the law. That would surely be in the public interest.

If At First You Don’t Succeed…

It’s been around five years since we launched this service, trying to save people’s online reputations. We’ve dealt with hundreds of clients. What are the lessons? One clear lesson is perseverance.

We have a success rate of 79.5% and we take clients from all walks of life from big corporate players to regular folk who have seen their reputations shredded. We always give advice about the likelihood of success on a case-by-case basis. But if people want to go ahead we are ferocious advocates for their rights to be forgotten or delisted.

And you must not give up at the first sign of resistance. The first step for delisting is always to contact the search engines themselves and this, most often, succeeds. If they push back, we go to the Information Commissioner’s Office (ICO) that regulates the search engines. In exceptional cases, we have taken cases to expert solicitors and King’s Counsellors who can take the matter to court.

Here is an example. In July 2021, we were approached by a young man who had an unusual name. He was trying to get a new job but kept getting refused because of his online reputation.

His reputation was in tatters because another man with the same name had been arrested after committing a lewd act in public. This event was photographed and recorded and went viral. When people Googled our client’s name, these stories and images would appear which was both humiliating for our client personally, but also prevented him getting him the job of his dreams.

We approached Google who refused to remove the vast majority of the offending and offensive links. It took them over a month to reach a decision and their reasons centred on the fact that the URLs referred to another man, and not our client even though they shared the same name. There was no public interest in keeping the links available. They were extremely vulgar and very out of date. Google often confuse the public interest with what interests the public.

We wrote back to Google with an explanation beside each URL of why it violated out client’s reputational rights, but they would not remove the offending content.

We turned to the ICO and explained our complaint to them. In February 2022, they came back to us and explained that they did not think that Google had breached any data protection laws and so would not take any action.

We then threw our last dice and appealed the ICO’s decision to the ICO themselves. This is something we have done only a few times, but in most cases we have succeeded in changing their minds. Unfortunately they stuck with their decision on this occasion.

We had run out of options for resolving this matter without court action so we turned to colleagues who specialise in media law and have been very successful in prosecuting Google for data violations. They agreed to take the case on using a conditional fee agreement (sometimes called a no win-no fee agreement). After writing a letter before action and threatening court proceedings, Google finally capitulated and agreed to remove the offending URLs.

It took a lot of time and effort but the end result was worth it.  We did all this for a flat rate fee of £250.00 which has not increased since we launched in 2018.

Fortunately, most cases are resolved satisfactorily and quickly.  In this case, perseverance paid off. And the result has been life-changing for our client, and very satisfying for us.