Does a right to be forgotten apply to prison sentence of over 4 years
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How to remove criminal record with the right to be forgotten
If you have been convicted of a criminal offence and received a prison sentence longer than 4 years, you might find in particularly challenging to have news articles about your conviction removed from the internet. If so, read the following case study.
Yes. The right to be forgotten applies to a prison sentence of over 4 years. Meet Jonathan. 20 years ago, Jonathan committed a criminal offence involving fraud and after pleading guilty, he received a prison sentence of 4 and a half years. At the time, Jonathan’s case received a great deal of media attention because he of his relationship to a well-known business woman who was effectively a public figure. Jonathan, however, other than being involved in a relationship with the woman, wasn’t particularly of an interest to the press.
As Jonathan’s case attracted media attention, there were more than 50 news articles published about his case, nearly all dating back to the time of his criminal case. 20 years later, Jonathan was still finding it hard to move on with his life because anyone who searched for his name on the internet immediately found those articles with many interest users noticing that the offence took place so many years ago. Jonathan contacted our firm for advice. He wanted to know whether it was possible to remove details about his criminal record from Google, by using the right to be forgotten or any other method.
A great deal of news articles are suitable for removal from Google searches. The first step that our lawyers took, following the initial consultation, was to assess whether the news articles were in fact suitable for removal from Google searches. Upon conducting an in-depth review of our client’s online presence, we discovered that a large number of articles appeared when his name was searched on Google, but they were of different nature and from a variety of sources. These articles primarily covered the conviction, which took place over 20 years ago. Interestingly, the more recent search results still prominently feature these decades-old articles, pointing to a lack of current public interest in him beyond this long-past incident. The age of these articles could be critical to a good argument for delisting from Google searches, as the age of the articles could serve to challenge the notion of current public interest, a standard often used by search engines to justify retaining links.
Moreover, the absence of newer material about may emphasise the reality that the information is not only dated but arguably irrelevant to the individual’s current life situation. Another noteworthy aspect is the volume of media attention that the individual in question received at the time of the conviction. In our client’s case, the widespread coverage seemed disproportionate and was largely fuelled by his relationship. This media saturation has led to an enduring, yet dated, online footprint that has little bearing on who our client is today. In summary, as often happens, the search engine situation showed a landscape riddled with outdated articles that focus on a two-decades-old conviction. There was a significant lack of newer material, indicating that public interest has moved on, even if the search results have not. Therefore, we believed this set a strong foundation for a delisting request.
It is true that Google algorithm allows for old articles to come up high up on search results and there is a good reason for this. Google have a complex algorithm that determines the ranking of search results based on a variety of factors, including relevance, timeliness, and user engagement. Normally, more recent and reputable sources would replace older information as it becomes less relevant. However, in our client’s case, the dated articles about the old conviction still appeared prominently when his name was searched 20 years later. This phenomenon can be partially attributed to the way search engines index and rank content. Often, the algorithm perceives old articles as relevant due to their initial high engagement rates, largely fuelled by historic search volume.
One common reason why old articles may appear so prominently on Google searches is the absence of new information about people who had been convicted of crimes who often prefer to maintain a low profile even years after the completion of their sentence. In Jonathan’s case, another contributing factor was the source of these articles. Many came from tabloids and gossip websites, which often receive high traffic and user engagement, further convincing the algorithm of their continued relevance. These websites, designed for sensationalism rather than factual reporting, can disproportionately skew the narrative around Jonathan and create an unfair online representation.
What makes this situation particularly concerning is that most internet users aren't adept at detecting the age of an article just by looking at search results. Search engines often display the title and a brief snippet but may not prominently feature the publication date, leading people to believe they are viewing current or recent information. As our client had chosen to maintain a low online profile for two decades, these old stories remain 'sticky,' giving an impression of newness even though they are far from it.
The Rehabilitation of Offenders Act provides a pathway for those sentenced to less than four years in prison to potentially have their convictions delisted from search engines. While not applicable to our client Jonahtan, due to the length of the sentence, it sets a precedent that could be referenced in many delisting efforts. Search engines often use the public interest argument to avoid delisting certain information. When we eventually drafted our lengthy and comprehensive submission we argued that the primary interest in our client's case was not his criminal conviction, whether the sentence he received was longer or shorter than 4 years imprisonment but rather the previous relationship with a famous individual.
To convince Google that our client should be treated as if his sentence was of 4 years only, we produced the judges’ sentencing remarks that made it clear that he increased an otherwise lower sentence due to what the judge considered at the time to be aggravating features. In other words, our client’s sentence was aggravated by unique features specific to the case, which at the time appeared very serious but twenty years down the line, are far more acceptable. Had these aggravating circumstances not been present, or if Jonathan was sentenced today, it is very likely that the prison sentence would have been under four years, potentially allowing for easier delisting under the Rehabilitation of Offenders Act.
Despite the media coverage and a catchy nickname given to the case by the press, our client’s situation was not without precedent. As we made our submissions to Google, we cited another high-profile case involving a financial crime, where delisting was successfully achieved despite the crime's historical significance and wide media coverage.
In most complex cases, we often advocate a step-by-step strategy, initially focusing on those articles where delisting is more likely. Over the past decade, our firm has developed strategies that have successfully resulted in the delisting of links to articles for many clients. This involves thorough preparation, including drafting comprehensive GDPR Notices and addressing any objections we anticipate the search engine might raise.
Should initial efforts prove unsuccessful, legal escalation is the next step, often leading to a positive resolution. In Jonathan’s case, while the road ahead was challenging due to the over-four-year sentence and the case's high profile, we approach it with cautious optimism, particularly due to our historic handling of similar matters. A nuanced approach that leverages legal frameworks, challenges conventional notions of public interest, and draws on successful precedents can often provide a pathway to assist individuals with their rehabilitation efforts.
The rehabilitation of offenders and the right to be forgotten are linked through the concept of giving individuals a second chance. Both principles acknowledge that individuals can change and that they should not be perpetually punished or stigmatised for past mistakes. These concepts are connected by considering past mistakes and future opportunities as one of the primary goals of rehabilitation is to reintegrate offenders into society as productive, law-abiding citizens. If past offences continuously haunt them (for example, in the form of easily accessible old online articles), it may hinder their opportunities for employment, housing, and social relationships. The right to be forgotten aims to mitigate this by allowing certain data to be removed from public view after a certain period or under certain conditions.
Furthermore, the two concepts are linked through the stigma attached to criminal records, which could prevent successful reintegration. If an individual is constantly reminded of and judged by their past mistakes, it can create feelings of hopelessness and push them back to criminal behaviour. The right to be forgotten can help lessen this stigma, making it easier for individuals to start anew. In Jonathan’s case, our team put its energy into understanding his case inside out. After reviewing all the articles, we decided the best way forward was to focus on Google directly.
Knowing the ins and outs of the Google system, we prepared a series of strong GDPR notices. These notices made clear points including that the stories were old and didn’t give a fair picture of Jonathan today, that the big media attention he got back then was more about who he knew, not what he did and that the articles made it seem like his crime was worse than it was because of certain details that made his prison time longer. We reminded Google that if things were to be judged by today’s standards, Jonathan’s crime would have been seen as less severe. We also showed them examples of other people in similar situations where Google had removed old stories. We kept our points simple but powerful, hoping Google would see Jonathan's side.
One of the big things we had to grapple with was the balance between what the public has a right to know and an individual's own rights. Every person has a right to a private life. They also deserve a fair chance to move past mistakes and get their life back on track. And, of course, there's the right for their data to be used fairly. We felt Jonathan wasn’t getting a fair shake. The old stories on Google were like a big roadblock for him, not letting him move forward. Our job was to try and clear that roadblock. It wasn't just about removing articles. It was about standing up for Jonathan's rights and helping him get a fresh start.
We learned a lot from this case and remain dedicated to helping others find the same kind of justice.