The ethics of search engines
Two important and linked UK court cases occurred this month in which Google challenged "right to be forgotten" claims, and presented a novel argument that a search engine is a form of journalism and entitled to journalistic privilege.
Two people, who must only be identified as NT1 and NT2 have unrelated lapsed criminal records. Both asked Google to remove search engine references to their past history under the EU "Right to be forgotten" rules. Google rejected the requests leading to NT1 and NT2 taking their cases to court where they asked the judge to order Google to comply. In the social media discussion of these cases, one opinion frequently expressed is that the plaintiffs should be going after the websites holding the source materials, not Google which is, after all, only a search engine. Another comment seen in many variations was that it is their own fault for committing the crime in the first place, and a perception that anyone exercising their right to be forgotten is trying to cover up scandals and rewrite history.
So what is a spent conviction? At one time, if you committed a minor offence, which might be vandalism when you were a teenager, or drunk and disorderly on a stag night, you ended up with a criminal record for life. That record could destroy employment opportunities. Recognising the problems that this causes in the rehabilitation of offenders, the UK introduced the concept of spent convictions. The laws are complex, but if, for example, an offence carried a sentence of less than six months, then two years after release, that conviction is considered spent and the person considered rehabilitated. The slate is wiped clean.
You do not have to disclose a spent conviction at job interviews, the police do not have to disclose it in a Criminal Records Check, and regardless of disclosure, employers are not allowed to discriminate against applicants on the basis of spent convictions. The same is true of landlords, insurance companies, and so on. Obviously a lot of social commentators sitting on moral high horses disagree with this position but this has been the law in the UK since 1974, well ahead of many other countries. Ireland only introduced a spent conviction law in 2016.
There are parallels in other areas of life. If a person is declared bankrupt, for example, credit rating agencies should remove the record after six years.
The problems with search engines
With the advent of the world wide web and search engines, the way prospective employers conduct background checks on applicants has changed radically. Newspapers now put all their news online, including records of crime and convictions. Search engines index those old stories and they can often feature prominently in search results, which means prospective employers, landlords, even your neighbours, are now in a position where they can bypass the legal mechanisms and conduct their own clandestine criminal history checks on people, including finding information about spent convictions.
Search results also lack context. For example, a search might reveal a newspaper article saying that someone was arrested, instead of a later article which says the person was found not guilty in court, or that charges were dropped, or that police released the person in question when they realised they'd arrested the wrong John Smith. It is for reasons such as these that the EU Court Of Justice, in 2014, ruled that there is a right to be forgotten, that citizens should be able to ask search engines not to include links to material about them which is out of date, and which can be misconstrued when taken out of context.
The case of NT1 and NT2
NT1 and NT2 both have spent convictions, and asked Google to remove links to articles about them. When Google refused, they took legal action and both cases have now been heard in the High Court. There is no connection between NT1 and NT2 other than the court cases.
In court, Google argued that it was exempt from complying under section 32 of the Data Protection Act, a clause intended to prevent people from misusing the DPA as a gagging order against the press. In effect, Google was claiming that its search indexes constitute journalism. The judge took some time examining that claim and disagreed. So too did Elizabeth Denham, the UK's Information Commissioner, who argued that journalism must include human editorial decisions, something which firmly excludes the automated data processing of search engines.
The outcome of these cases is that NT1 won his case, and Google has been instructed to remove links to his name, whilst NT2 failed, and Google can continue as before. The reason for the difference is that NT1 received a conviction for false accounting in the 1990s, but he is not a public figure, has never held public office, and shows remorse for his crime. NT2 in contrast, is said to be a more high profile businessman, still works in the same line of business which he was involved in at the time of the offence, and crucially, after his conviction was spent, he gave interviews to a national newspaper about his life and crimes.
The Streisand effect
The judge is obviously aware of the Streisand effect and has sensibly ordered that the identities of both NT1 and NT2 should remain protected, regardless of the outcome of the cases. The Streisand effect takes its name from Barbara Streisand who, back in 2003, went to court to try to have an aerial photo of her house suppressed from a website, citing invasion of privacy. Server logs later showed that before her court case, the photo in question had been viewed just six times, and two of those views were by Streisand's own solicitors. As a result of the publicity generated by the case, the views shot up to over 400,000 during the course of the hearing.
27th April 2018
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