Rehabilitation in the internet age — The Google-effect and the disclosure of criminal records

There are over 10.5 million people in the UK with a criminal record. The vast majority of them have put their mistakes behind them and are living crime-free, law-abiding lives. However, their criminal record can restrict their enjoyment of full and inclusive citizenship — in some cases, for many years after they have served their sentences in full.

People with convictions are the least likely disadvantaged group to be employed — only 12 per cent of employers have knowingly employed one in the last three years (CIPD, 2010). They make up between a quarter and a third of unemployed people (Ministry of Justice, 2011), and 75 per cent of employers discriminate against applicants on the basis of a criminal record (Working Links, 2010). Beyond finding work, other difficulties people can face as a result of their criminal record can include obtaining insurance, travelling to other countries, accessing educational opportunities, and exclusion from participation in aspects of civil society.

The Rehabilitation of Offenders Act 1974

People on probation or recently released from prison have to deal with having a criminal record that they need to disclose to an employer or an insurance company if they are asked. The rules are quite complex but, in short, anybody currently serving some form of community order will have an unspent conviction as defined by the Rehabilitation of Offenders Act 1974 (ROA), and even when they finish that order it will remain unspent for at least a further year. Those released from prison have an unspent conviction for the length of the full sentence plus an additional fixed period (which varies depending on the length of the prison sentence).

If an individual does not get reconvicted for a certain period of time afterward, the conviction can in most cases become spent. The ROA is designed to enable people with convictions to move on with their lives once they have become ‘rehabilitated’. Putting it another way, the ROA is designed to be a form of legal protection from discrimination. The point at which convictions become spent changed in 2014, with most convictions becoming spent much sooner than previously.

However, the ROA first came into force over 40 years ago, when criminal records (official or otherwise) were not accessible in the way that they are now. Furthermore, it is quite common for employers to use the internet as an informal part of their recruitment process. Employers regularly use internet search engines to ‘check-up’ on job applicants. Although only a small percentage of criminal cases receive media coverage, where they do, the effect can be long-lasting. The reporting of their convictions online, and the lack of regulation, means that many people find that they face judgement and discrimination long after their convictions legally become spent.

For most employment positions, employers are legally obliged to ignore criminal records once they are spent. However, in practice this is very difficult to enforce. The ROA does not provide a remedy by which to take action against an employer who unlawfully takes account of a spent conviction, nor does it enable individuals to take action against newspapers and websites that continue to publish details of convictions after they become spent.

Establishing a right to be forgotten

In May 2014, the Court of Justice of the European Union (CJEU) ruled on a case surrounding the online availability of personal information. The case, often referred to as the Google Spain ‘Right to be Forgotten’ ruling, was brought by a Spanish man who complained that an auction notice of his repossessed home on Google’s search results infringed his privacy. The court found in his favor, and this has had wide-reaching consequences for search engines like Google.

The court found that the 1995 Data Protection Directive applied to search engines — essentially, that they are controllers of personal data. As a result, individuals have the right — under certain circumstances — to ask search engines to remove links with personal information about them. This applies where the information is inadequate, irrelevant or excessive.

The EU Article 29 Working Party adopted guidelines on the implementation of the Google Spain judgement (European Commission, 2014), and in relation to criminal records state:

EU Member States may have different approaches as to the public availability of information about offenders and their offences. Specific legal provisions may exist which have an impact on the availability of such information over time. DPAs will handle such cases in accordance with the relevant national principles and approaches. As a rule, DPAs are more likely to consider the delisting of search results relating to relatively minor offences that happened a long time ago, whilst being less likely to consider the delisting of results relating to more serious ones that happened more recently. However, these issues call for careful consideration and will be handled on a case-by-case basis.

The phrase ‘right to be forgotten’ is quite misleading; ultimately, it gives an opportunity to ‘delist’ — i.e. to stop links appearing in search results to personal data which is ‘inadequate, irrelevant or excessive’. The information will still exist on the website that published the original article, but Google will not deliver matches to some enquiries that are entered. Deletion of the original information is still the responsibility of the website owner. Many news outlets (including the BBC) regularly refuse to edit reports that contain spent convictions.

The ruling is seen as a potential way of dealing with the ‘Google-effect’ that often haunts people for many different reasons. A ‘right to delist’ in relation to criminal records could provide an opportunity for individuals whose criminal records can be found online by anybody who searches their name.

Removing search results in practice

There is a system with Google (as well as with other search engines) where individuals can request the removal of search results. If successful, information on search results will disappear from searches made in Europe. Since the case in 2014, Unlock (the charity I am a co-director of) has been actively looking at if and how this is being applied to people with criminal records.

On a broad level, it has been quite popular. In the UK, there were 60,000 requests in the first five months. Google’s transparency report is updated regularly and shows that (as of 3 January 2017) in the UK, Google has received 101,508 requests, with 39.3 per cent of applications accepted and 78,807 URL’s being removed (as some requests involve more than one URL). Around 30 per cent of the refusals from Google are because the request ‘concerns your professional activity’ (Google, 2017).

In their transparency report, Google include a case where they have removed a link due to the conviction being spent:

A man asked that we remove a link to a news summary of a local magistrate’s decisions that included the man’s guilty verdict. Under the UK Rehabilitation of Offenders Act, this conviction has been spent. We have removed the page from search results for his name. (Google, 2017)

However, in the same report, there is an example where it is unclear whether the conviction is spent or not:

An individual asked us to remove links to articles on the internet that reference his dismissal for sexual crimes committed on the job. We did not remove the pages from search results. (Google, 2017)

Unsuccessful applicants can refer the matter to the Information Commissioner’s Office (ICO) as a formal complaint, or bring proceedings under the Data Protection Act. The number of cases the ICO has dealt with is low, but steadily increasing. There were 120 complaints in the first year, and in the 2015–16 annual report the ICO reported that more than 370 people sought help after search engines refused to remove results about them under the right to be forgotten (ICO, 2016). Of the ICO’s 370 cases in 2015–16, about a third of these contacts related to criminal convictions. The ICO has published delisting criteria. In the section ‘does the data relate to a criminal offence?’, it states:

In handling complaints about search results linking to information about offences and criminal behaviour we will take into account public policy relating to the rehabilitation of offenders and the existence of mechanisms other than internet searches to protect the public from offenders and potential offenders.

We are more likely to consider the delisting of search results relating to relatively minor offences that happened a long time ago and less likely to consider the delisting of results relating to more serious ones that happened more recently. However, these issues call for careful consideration and will be handled on a case-by-case basis. (ICO, 2017)

This demonstrates how the ROA is not being used as the decisive factor when dealing with appeals against any refusals by Google to delist links to spent convictions. No cases have yet been tried by the English courts on this point, although Unlock is working with a law firm specializing in this area to explore whether there are any potential legal remedies for the online publication of spent convictions.

You can be forgotten

One person for whom the ‘Google-effect’ has caused problems is Sonia (not her real name). Eight years ago she was convicted of arson; she had set fire to her own home as part of being in an abusive relationship. She was given a community order and as a result of having an understanding boss, had kept her job and wanted to move on and concentrate on her career. A job opportunity came up and she applied. She disclosed the conviction because of the nature of the role and was offered the job.

In the meantime, she met a man and they married. After discovering he had been having another relationship, she left him and filed for divorce. He subsequently told her employer that they had employed a ‘very dangerous person’ who was a risk to others because of her conviction. He printed off the newspaper article that he had founded on Google and sent that to the employer. Despite having a conviction that was now spent, her past was being used against her. After making her request through Google’s online process, they agreed to remove the links. She used this success to contact the newspaper directly and they agreed to remove the source content (Unlock, 2017).

More generally, it seems that if the conviction became spent a long time ago, it is very likely to be delisted. Likewise, if it is quite recent it is unlikely to be delisted. Violent and sexual offences are the ones where there is more uncertainty, and there does not appear to be a starting presumption of delisting where the offence is now spent.

There are positive signs on the horizon. Article 17 of the General Data Protection Regulation (to be implemented in May 2018) includes a ‘right to erasure’. This potentially reverses the burden of proof; it would be for the companies who publish the content online to prove that the data cannot be deleted because it is still needed or still relevant.

Alternatives for people on probation

For people on probation, they will have at least one conviction (the current one) that is unspent. Although a request to delist search results does not seem to be successful while a conviction is unspent, there is another way that people can minimize the effects of their criminal record being available online.

People who can be readily found can look at changing their name. This can be an effective way of preventing recruiters and colleagues from ‘Googling’ them, although it would not prevent the need to disclose it to an employer if they ask for disclosure during the recruitment process, and the conviction details would still be revealed on official criminal record checks. It does, however, prevent unofficial or informal checks online, which is particularly important for those employers that do not ask for disclosure of criminal records during the recruitment process. You do not need legal proof that you have changed your name, providing that you can be identified by your new chosen name. If you wish to be known by a different name you can change your name at any time, providing you do not intend to deceive or defraud another person. There is no legal procedure to follow in order to change a name. You simply start using the new one. You can change your forename or surname, add names or rearrange your existing name.

In practice, a change of name does not mean that individuals can avoid disclosing their criminal record if they are asked by an employer. What it does do is help to deal with the fact that information reported online might otherwise be easily found by those that go looking. Given cases where colleagues go snooping on new recruits, a change of name can be an effective way of preventing future repercussions, at least until the conviction is spent, when a request to get the content removed and/or delisted from search results may be successful.

Conclusion

The ‘right to delist’ is a clumsy process. To be comprehensive, individuals have to apply to multiple search engines, and even then it does not necessarily cover other domains (like .com) and the source of the content remains on the host website. More fundamentally, it raises the question of how the Rehabilitation of Offenders Act fits in an internet age. With increasing moves towards online publicizing of court decisions, it is likely that the number of people affected by the online publication of spent criminal records will only increase.

Google (and other search engines) should, when considering a request to delist search results, operate a presumption that if the conviction is spent, it should delink URLs that refer to those spent convictions. Requests would only be refused if there are clear countervailing public interest considerations. Likewise, news publishers should operate on a presumption that URLs referring to spent convictions would be removed from online databases.

The ICO could also strengthen their response to Google and others that continue to link to, or host, personal details of old and minor criminal records online, as well as taking action against those employers and others that use spent conviction details they have found out about online (or through other methods, such as enforced subject access).

Whilst the ‘right to be forgotten’ is slowly being established as a legal principle, there remain concerns that employers and others are routinely able to access information about people to which they are not legally entitled. Modern forms of online news reporting are compromising the extent to which even spent convictions can remain private. The so-called ‘Google-effect’ can lead to information about criminal offences remaining publicly accessible for many years, undermining the purpose of the Rehabilitation of Offenders Act 1974.

This piece for originally written for the Probation Journal and was published in May 2017. The published article is available to download.