The Right to be Forgotten with a Criminal Record

The right to be forgotten is essentially a term that describes the desire of individuals to get on with their lives without being perpetually or periodically stigmatised as a consequence of a specific action performed in the past.

The principle already exists in the UK, specifically under the Rehabilitation of Offenders Act, that after a certain period of time criminal convictions should become ‘spent’ meaning that, after a period of time, an individual should not be obliged to declare past mistakes particularly when seeking employment or applying for insurance.

On 13 May 2014 the European Court of Justice confirmed that the ‘right to be forgotten’ derived from Article 7 (respect for private and family life) and Article 8 (protection of personal data) of the Charter of Fundamental Rights of the European Union.

Judges in the European Union ruled that because Google is a collector and processor of data it should be classified as a ‘data controller’ under the meaning of EU law. Such data controllers are required under EU law to remove data that is ‘inadequate, irrelevant or no longer relevant’.

It is important to note that the ruling only applies to links that are brought up as a result of a Google search. The information will remain on the original website but Google will not match a link to the website where the search for information is made within the EU.

It applies to any search engine. Google have established a system for applicants to apply for the right to be forgotten and we expect other search engines, such as Bing and Yahoo, to establish their own systems for the removal of unwanted personal data.

To exercise the right to be forgotten and request removal from a search engine you need to complete Google’s online form.

The process requires you to identify:

• Your country of residence
• Personal information
• A list of the website links to be removed along with a short description of each one
• An attachment of legal identification (i.e. some form of photo identification)

The form allows you to submit the name for which you would like results removed. However, it only allows for the submission of one name. For example if someone known as both Henry Jones and Harry Jones submits a form for the removal of search results for his name, he would only be allowed to indicate one of these names on the form.

Most importantly, you will need to explain why the information you are seeking to have removed is ‘irrelevant, outdated or inappropriate’. If the information relates to convictions which are now spent under the Rehabilitation of Offenders Act, you can explain that you have a legal right to be treated as if you had never committed the offences.

If the information relates to convictions which are not yet spent, it is likely to be much more difficult to present a strong argument that the information is irrelevant, outdated or inappropriate. We are not aware of any successful applications that have been made for the removal of information relating to unspent convictions.

Once you have submitted your application, you will then receive an email from Google confirming the request before it is assessed. After a request is filed, Google’s removals team reviews the request and weighs the individual’s right to privacy against the public’s right to know deciding if the website is “inadequate, irrelevant or no longer relevant or excessive in relation to the purposes for which they were processed”. If the request is approved, searches using your name will no longer result in the content appearing in search results. The content remains online and is not erased.

Potentially. Under the Rehabilitation of Offenders Act, once your conviction becomes spent you have a legal right (in most cases) to be treated as if you had never committed the offence. If there is information online that relates to your spent conviction, you can make a strong case that the information is now irrelevant, outdated and inappropriate.

We are aware of several successful cases where applicants have applied under Google’s right to be forgotten process for the removal of links to websites containing information about spent convictions.

We are not currently aware of any successful applications made under Google’s right to be forgotten relating to information about unspent convictions.  Journalism and articles owned by media organisations are exempt from section 32 of the Data Protection Act. This means that it is not unlawful for them to publish information about your criminal record if it is deemed to be of public interest.

If you feel that you can make a good case for the removal of the information because it is irrelevant, outdated and inappropriate, it is still worth making an application.

No. All of the European legislation affecting this issue has been incorporated into UK law so unless the law is repealed – and there is no indication that Parliament intends to do this – then you will continue to be able to apply to have data removed in this way.

The Information Commissioner’s Office (ICO) is the UK’s independent authority concerned with upholding information rights in the public interest and data protection law. If your application has been refused, you can either make a complaint directly to the ICO or your can contact us on 0300 123 1999 or helpline@nacro.org.uk.

If online information about you is causing you problems, we strongly recommend that you apply for the links to be removed under Google’s right to be forgotten. You can also appeal to the website directly for the content to be removed in its entirety, or amended.

If all else fails, you might consider changing your name by deed poll so that you cannot be easily associated with the information. If your convictions are unspent, or if you are currently on licence or under Multi-Agency Public Protection Arrangements (MAPPA) changing your name will not necessarily mean that you do not need to disclose your criminal record to prospective employers, nor will it prevent your criminal record from being disclosed on criminal record checks.

However, it does mean that if, for example, a prospective employer, colleague or customer decides to Google you, the online articles will not necessarily be associated with you.