On any street in any city, town, or village, you will find people who have – as part of the trials and tribulations of life – suffered bankruptcy, divorce, alcoholism, drug dependency, dismissal from employment, and various types of disqualification. And in the UK there are 12 million people who have been convicted of a criminal offence. With an adult criminal conviction comes a naming and shaming routine like no other.
The news reports that are published after conviction and sentence vary in terms of detail, length, and prominence. Some articles will include photographs, such as a police mugshot or CCTV imagery, whereas others are limited to a simple paragraph about a person’s error of judgment. Depending on the news platform that has chosen to publish the report, an article could be read a hundred times or a million times. The more times a publication is read, the higher the article will feature in online searches.
In the UK, legislation exists to provide rights to those affected. In 2014, the European Court of Justice established a ‘right to be forgotten’. Since then, individuals have been able to ask search engines to delist certain results for queries related to a person’s name. Google, the world’s most popular search engine, describes their process as involving a ‘balancing exercise’ with their ‘professional reviewers’ deciding whether the information is in the public interest based on factors including the age of the content and the person’s role in public life.
It is this area in which one public body has shown itself to be a sham. It is the Information Commissioner’s Office (ICO), a regulatory office that masquerades as a defender of human rights. I have formed this view after supporting a friend in the agonising process of seeking removal of historic ‘spent’ articles from search engine listings. It is my feeling that reputation-ruining information should not be available at the click of a button when that information is inaccurate, inadequate, irrelevant or excessive (part of the test outlined in a 2014 ruling).
My friend is now a law-abiding, tax-paying citizen working in the health and safety field. Almost a decade ago, as a teenager, he was convicted of illegally possessing a blank firing pistol. In his case, the ICO was too afraid to challenge Google, a global multinational corporation with a $300 billion annual income stream.
The ICO can provide search engines with informal advice to delist, and in the event of disagreement between the ICO and the search engine, the ICO can serve an enforcement notice under Section 149 of the Data Protection Act 2018. The serving of an enforcement notice makes the ongoing processing of that personal data a criminal offence. The ICO says that when deciding whether to take action in a case involving a conviction, they will look at the severity of the offence, the age of the conviction, and whether the sentence is ‘spent’ under UK law.
The position of the ICO contradicts the principles of the Rehabilitation of Offenders Act 1974 (ROA). A conviction becoming ‘spent’ under the ROA has limited effect when a potential employer can simply conduct their own research into a job applicant using an online search engine. It is my view that spent convictions should not be allowed to remain in search engine results, where they can damage a person’s reputation potentially decades after the offence. This view appears not to be shared by ICO decision-makers.
In the past 15 years, there has been considerable progress made, with more sentences rendered ‘spent’ since the passing of the Police, Crime, Sentencing and Courts (PCSC) Act 2022 reduced the lengthy rehabilitation periods previously in place. A conviction, particularly a ‘spent’ conviction, should not translate to a life of punishment and shame. Otherwise, it is society that brings shame upon itself.
Elliot Tyler 