Once upon a time, before the Internet was a twinkle in the eye of Tim Berners Lee, the law set up a “rehabilitation of offenders” framework designed to help people convicted of certain less serious offences find work without having to disclose their “spent” convictions, with restrictions around the official availability of such information to employers and others.
And so, in the days when old editions of newspapers quickly wound up as wrappers for fish and chips and you needed Sherlock Holmesian persistence to track down anything a paper reported yesterday or before, many offenders were able to put their convictions behind them and move on with their lives.
No longer. Enter one of the big issues of the Internet era – its infinite memory. Now, as we all know, convictions – and many other kinds of skeletons – are roaming the web in an endless and fruitless search for a closet. And it only takes a few seconds for a Google search to illuminate them with a spotlight.
So what, if anything, can an offender do about online newspaper conviction reports?
In 2014, the European court attempted to balance search engine power with privacy rights by creating a right to be forgotten for “inadequate”, “irrelevant”, “no longer relevant” or “excessive” personal information in EU search results. In 2018, the UK High Court considered how such right to be forgotten principles worked when two businessmen known as “NT1” and “NT2” – for obvious reasons their names were withheld – sought removal of their previous convictions from Google.
Thanks to this judgment, plus some guidance from data protection authorities, we now have more clarity around the criteria which apply to removal of convictions from the web on EU privacy grounds. Of course, as lawyers love saying, every case depends on its own facts. But we can at least identify some key factors which are likely to weigh in favour of removal:
- a less serious offence
- a lesser likelihood of repeat offending
- an older offence
- if the offender was a minor or otherwise incapacitated in some way at the time
- if the reporting of the conviction was significantly inaccurate
- if it’s longer relevant for people to know about the conviction, e.g., an offender convicted of business-related offences has retired
- if the conviction is “spent” under the rehabilitation of offenders rules
- remorse and acceptance of guilt by the offender