When dealing with Google, it is good to bear in mind that their right to erasure policy is both erratic and random. The Google Right to be Forgotten seems to depend on the individual who is dealing with a request and whether they have had a good or bad day. There have been a number of odd – indeed, downright inconsistent decisions over the past six months which illustrate the problem. Learning on the job does not quite capture it.
Case 1 – Right to be Forgotten: Google
This case came shortly after the High Court judgment of NT1 & NT2 v Google LLC The client had a remarkably similar profile to NT2 who, you will remember, was successful in his action against Google. The client pleaded guilty to fraud several years ago, but unlike NT2 he did not get a custodial sentence. After his conviction was spent, the Rehabilitation of Offenders Act meant he did not have to mention his criminal record. Despite this, he found that he could not get a job because his conviction popped up on Google’s search results and he had problems with banks and insurers.
Google refused to afford him the Right to be Forgotten. Google, when challenged, repeated their favourite phrase: “Having assessed the balance of relevant rights and interests…Google LLC has decided not to block this content.” The case was referred to the Information Commissioners Office (ICO) who took a dim view of Google’s poor response. They asked them to provide a reasoned explanation of their decision within 14 days. Google then quickly removed the content without further explanation.
Case 2 – Right to be Forgotten: UK
The next fraud case seemed far more serious. Although he did not receive a custodial sentence, the fraud received far more coverage than case 1 in the local and national press. All of this appeared on Google searches. The client had a spent conviction but knew that people were searching his name on Google, which caused problems in his personal life and badly affected his confidence. Despite this background, Google removed the content within days of being contacted without any need for appeal either to them or to the ICO. It was hard to see any consistency in the treatment of Case 1 and Case 2.
Case 3 – The Right to Erasure: GDPR is clear, but is Google?
A few months later, a man was found not guilty after being accused of historic child abuse. There was an enormous amount of coverage in the press, much of which failed to mention the not guilty verdict, and since then, he has been afraid for his own safety. Google refused to afford him the Right to be Forgotten, despite the not guilty verdict. When challenged, Google refused to explain why they would not remove the links. They merely repeated their stock phrase about relevant rights and interests. This case seemed to be even more meritorious than either Case 1 or Case 2, given that he was found not guilty, but Google was adamant that they would not do anything about it. There is a pending appeal to the ICO.
Case 4 – GDPR: Right to be Forgotten
The last case is the most shocking of all. It involves a woman who was being seriously harassed by a jealous ex-boyfriend. Eventually there was a court ruling against him and a warrant for his arrest after he issued death threats. He fled the country and has since set up numerous fake sites accusing the woman of being a thief and a racist. This has had a devastating effect on her life. She has struggled to find work and has even been refused accommodation by landlords after a search on Google revealed these attack sites. Google has refused to accord her the Right to be Forgotten, and have provided no explanation beyond their stock phrase. This has also been referred to the ICO.
It is extraordinary to witness the arrogance of a corporation, with so much influence over information and people’s reputations and lives, acting as judge and jury about the “public interest” in cases which have already been decided by judge and jury. This high-handedness also extends to ignoring the public interest determined by an elected parliament in passing the Rehabilitation of Offenders Act.
ICO – struggling to respond
Meanwhile, the ICO have been swamped by the GDPR, including the Right to be Forgotten, and are struggling to respond within two months of each request, which means a lot of people are in limbo. It does seem, however, that they are getting increasingly frustrated by Google’s attempts to dismiss cases with stock phrases about relevant rights and interests.
In the NT1 and NT2 cases, there were no damages awarded against Google, presumably in the normally sound belief that clarity in the law would change the company’s policy. It is, however, abundantly clear that Google still has no policy except a quiet life for itself, and is only likely to react to a painful damages award. How long before another big judgment against this Goliath that will hit them where it hurts, in the pocket?