Well, it had to come sooner or later. Data protection lawyers have been waiting with bated breath for the first decision by the UK Information Commissioner's Office in relation to the so-called "right to be forgotten". It was perhaps inevitable that Google would feature somewhere in the story, but the main feature of interest is the subject matter of the material that was being objected to.
When the Google Spain decision was first reported, there was considerable outcry in the press over the curtailment of freedom of speech that would apparently ensue, if links to old and outdated articles were removed from the search results of individuals named in those articles. A strategy started to emerge whereby the media would, from time to time, publish stories in which they listed the articles in respect of which links had been removed. Those new stories included details of the subject matter of the original articles.
The unknown complainant in this case, decided last week by the ICO, had been convicted of a criminal offence a decade ago, which was a spent conviction for the purposes of the Rehabilitation of Offenders Act. He therefore requested the removal of a link to a report of his conviction from his search results, and Google agreed (properly, in the opinion of the ICO).
An article was then written about the removal, naming the complainant and including details of his conviction. The contemporary article therefore started to show up in the complainant's search results and this time Google refused to remove it. Their argument was that the new story was of public interest and published journalistically, and could not therefore be removed.
The ICO has criticised this decision and directed that the search results must be removed within the next month. In doing so they drew the important distinction between the right of journalists to write such an article and to have that article found by reference to its general subject matter (i.e. in response to search terms about the right to be forgotten generally), and the right of the complainant to ensure that information about his spent conviction did not show up in his personal search results.
It's a relatively fine distinction, but a logical one in light of the manner in which the right to be forgotten is being applied. It will undoubtedly be pretty unpopular in some quarters though. With the prospect of further refinements to the right under the European wide General Data Protection Regulation later this year, one thing is certain. This might be the first decision the ICO has had to make on this thorny issue, but it will certainly not be the last.
“Google was right, in its original decision, to accept that search results relating to the complainant’s historic conviction were no longer relevant and were having a negative impact on privacy. It is wrong of them to now refuse to remove newer links that reveal the same details and have the same negative impact.” “Let’s be clear. We understand that links being removed as a result of this court ruling is something that newspapers want to write about. And we understand that people need to be able to find these stories through search engines like Google. But that does not need them to be revealed when searching on the original complainant’s name.”