Unlock speak at ICO policy conference: “The Google effect – Criminal records and the ‘right to be forgotten’”

I was pleased to be invited to speak today at the ICO’s Data Protection Policy Conference.

With the title “Privacy versus the right to know: balancing privacy and access to personal information in the internet era”, I was asked to come and take part in a panel discussion, “Technology, information and its consequences”, speaking alongside Timothy Pitt-Payne QC and Daniel Tench.

The ICO are planning to publish a report on the conference in the coming months, but for the meantime, below are the opening comments that I’d prepared for the discussion. You can get a good sense of the rest of the conference by taking a look at the twitter hashtag #ICOpolicyconf15

Opening comments

There are over 10.5 million people in the UK with a criminal record. The vast majority have put their former mistakes behind them and are living crime-free and law-abiding lives. However, their criminal record can restrict their enjoyment of full and inclusive citizenship – in some cases, many years after the offences for which they have already served their sentences in full. Examples include discrimination in the field of employment, difficulties obtaining insurance and other financial services, restrictions on travel and access to educational opportunities and exclusion from participation in aspects of civil society.

Unlock is an independent, award-winning charity for people with convictions which exists for two simple reasons. Firstly, we assist people to move on positively with their lives by empowering them with information, advice and support to overcome the stigma of their previous convictions. Secondly, we seek to promote a fairer and more inclusive society by challenging discriminatory practices and promoting socially just alternatives.

Today, my focus is on how people (and by that, I include employers, insurers and other organisations, as well as the public) access or use information about criminal records that they shouldn’t be using.

Discrimination and ‘legal rehabilitation’

People with convictions are the least likely disadvantaged group to be employed. They make up between a quarter and a third of unemployed people. 75% of employers discriminate against applicants on the basis of a criminal record.

Since the launch of the Police National Computer, criminal records have evolved from being used merely for crime detection purposes, to becoming a means of categorizing people as potentially ‘unsuitable’, ‘risky’ or even ‘undeserving’.

The Rehabilitation of Offenders Act is designed to enable people with convictions to move on their lives once they have become ‘rehabilitated’ in the eyes of the law.

In theory, once you’ve stayed out of crime for a certain time, your record can in most cases become spent. This means that for most jobs it no longer needs to be disclosed to most employers. Although that doesn’t apply to many sensitive roles (particularly working with children or vulnerable adults, where most people with convictions will have to disclose all their convictions for the rest of their life), on the whole, for many jobs, spent convictions do not need to be disclosed. This allows people who have stayed out of crime to start with a clean slate. It means you can apply for jobs without having to disclose it.

Google effect

However, that law first came into force over 40 years ago. Times have changed. Nowadays, it’s quite common for employers to use the internet as a key part of their recruitment process. To some, it’s human nature to ‘google’ somebody.

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.

So what happens in your criminal record details are online? In theory, once it’s spent, if an employer finds out about it, they are legally obliged to ignore it. Even further, an employer is legally required to not take into account spent convictions unless it’s for a job that is exempt, However, in practice this is very difficult to enforce – as an applicant, you have very few rights, and we often find employers using spent convictions to withdraw job offers or sacking employees many years later.

The reporting of convictions online, and the lack of regulation in this area, means that many people find that they face judgement and discrimination long after their convictions legally become ‘spent’. The fact that around a third of the cases ICO received on this issue involving criminal convictions in some way shows how important this issue is.

Right to be forgotten

So the Google Spain judgement, and the concept of ‘a right to be forgotten’ is one which, in theory, is very promising. However, like the ICO, we’ve been surprised at the low number of enquiries to our Helpline,

But what’s clear is that this is an area that is constantly evolving. Having seen a number of responses from Google to requests made by individuals, there seems to be some improvement in how they’re dealing with requests. However, we’re still seeing standard template responses from Google. They’re failing to properly consider whether convictions are spent. They also don’t seem to be providing direct links to the ‘data protection authority’ (i.e. the ICO) – so to many people, that’s the end of it. And the response of some newspapers to reprint the cases of those they’ve been notified by Google having been delisted has certainly created a fear amongst applicants of, instead of removing details, unintentionally drawing more attention to their details online. The absence of ‘success stories’ understandably makes many people question whether there’s any point.

So perhaps it’s useful to speak about a success story. This will perhaps emphasise the issue.

Sonia

“8 years ago I was convicted of Arson. I set fire to my own home as part of being in an abusive relationship.

As a result of having a very understanding boss, I had kept my job and just wanted to move on and concentrate on my career so I completed a degree. A fantastic job opportunity came up and I applied. I was totally honest and disclosed my conviction as I knew it was going to show up on my DBS which they requested. I was delighted to get the job and knew my life was now going in the right direction again and I was never going to look back.

In the meantime I had met a ‘nice’ man and we married. The relationship seemed to be going well, but I eventually found out he was leading a double life.  I told him to leave and I moved back in with my parents. I filed for divorce as I felt I couldn’t ever trust this man again and that is when my life came crashing down again.

He suddenly decided that he wanted revenge and told my employer that they were employing a very dangerous person who was a risk to others because of my conviction.. He had also printed off the newspaper article he had found on Google about me and said he was going to post it around the city so everyone could read it and destroy me. His attacks on me were malicious and it was terrifying not knowing what this man could do and the lengths that he would go to. I was advised by my solicitor and my employer to file for a Harassment Order and inform the Police of his allegations and intentions. My employer could see what this man was trying to do to me and supported me wholeheartedly.  Despite having a spent conviction, that terrible newspaper article was being used against me again. It just wasn’t fair and I felt that enough was enough. I had to fight to get the past ‘put to bed’.”

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.

This shows how this system has the potential for it to benefit individual. But there are issues.

Issues

• How can the Rehabilitation of Offenders Act be enforced in a digital age?
• The ‘right to be forgotten’ is not very well known
• Not many people are taking their requests to the ICO after refusals from Google
• The process
  • The need for it to apply across all domains – ICO’s enforcement
  • The need to apply to multiple search engines
  • The need to also remove the source content

Conclusion

Whilst the ‘right to be forgotten’ is slowly being established as a legal principle, Unlock remains concerned that employers and others are routinely able to access information about people to which they are not legally entitled.

We are keen to see the ICO 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’ve found out about online (or through other methods, such as enforced subject access).

Written by Christopher Stacey, Co-Director of Unlock

Useful links

• You can follow the twitter discussion about the conference at #ICOpolicyconf15
• For details of our policy work on the ‘google effect’ and criminal records, click here
• For our practical information for people with convictions on how to remove links to search results, click here