Forgetting What We Never Knew

February 20, 2018

Former US Secretary of State for Defence, Donald Rumsfeld, got
a hard time when he said in a briefing: ‘There are known knowns. There are
things we know that we know. There are known unknowns. That is to say, there
are things that we now know we don’t know. But there are also unknown unknowns.
There are things we do not know we don’t know.’ I felt that it wasn’t as daft
as it sounded. And it seems the High Court is also less sceptical of that
approach to information than many who lampooned Donald.

In NT 1 & Anor v
Google LLC
EWHC 261 (QB)
(and the earlier judgment at [2018] EWHC 67 (QB))
we appear to be heading for ground-breaking judgments on the so-called right to
be forgotten when we have no idea what information is sought to be erased from
the Google search records. We face the very real prospect that the lead
judgment on this important issue will be based on a set of facts of which all
applying the principles set out in the judgment remain in ignorance. All I can
say, at least while using appropriate language, is that the situation is going
to make life tough and, perhaps more important, is going to leave the goal
virtually unguarded when the media weigh in with their inevitable attacks on
any restrictions that the judgment seeks to apply.

We know that the information at the heart of each claim concerns an old criminal conviction. The claimants say that in some respects the information returned by Google is inaccurate, and in any event ‘way out of date and … being maintained for far longer than is necessary for any conceivable legitimate purpose’. The Google defences include an assertion that the information is substantially accurate, and the propositions that if its search results involved the processing or disclosure of personal data or private information about the claimants this was necessary for the exercise of freedom of expression by internet users and/or necessary for the purposes of its own legitimate interests and/or (in at least some respects) was otherwise in the substantial public interest. Google’s defences apparently involve reliance on a deal of background information about the claimants, and the convictions which they seek to have de-listed.

Counsel for the media describe the issues as having ‘potentially profound and far-reaching ramifications on both a legal and general public interest level’. The Court is concerned, especially in a context where there will be ‘substantial and obviously legitimate interest’ in the cases, about ‘open justice’. But, as Warby J states, ‘the proceedings would be self-defeating if the claimants were obliged, as the price of bringing their claims before the court, to submit every detail of the information they seek to protect to public scrutiny’.

I don’t envy Warby J as he seeks to frame a judgment which makes sense while having to use a range of techniques to protect the claimants’ identity. And I don’t envy those reporting the case while still respecting the reporting restrictions that apply. 

There is one other worry. It may be that whatever principles emerge will fall by the wayside as soon as the GDPR is in force. That seems unlikely. I hope that the parties will argue on the basis that the GDPR is the law (notwithstanding its delayed implementation) and that the judgment of Warby J will take the GDPR, Article 17 fully into account.