A right to be forgotten
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An ex-offender leaves prison - but how free is he really?
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The UK's Rehabilitation of Offenders Act creates spent offences allowing reformed offenders to rebuild their lives, but is increasingly outdated by virtue of the storage and easy accessibility of archived data on-line. Once an offender's case is on-line in the media, it remains there and is accessible via search engines such as Google.
This hinders rehabilitation and undermines the Rehabilitation of Offenders Act because although a person's conviction may be spent and therefore normally not required to be declared (some categories of employment exempt), many employers apparently Google the names of applicants anyway. On finding the applicant's conviction, they are then accused of hiding their past and are denied employment. Or more usually, are not even considered for interview.
I know the EU was looking at a 'right to be forgotten' but this seems to have died a death or got so bogged down that rigour mortis has set in. My understanding is that any such EU legislation would exempt newspapers and certain other archives on the grounds of a free press. But now that the UK has left the EU, such legislation is now solely in the power of Westminster.
I fear that such exceptions would render any such right useless. It is internet archived press reports that pose the greatest problem. We had a free press before we had the internet and nobody is suggesting that hard copies held on file at newspaper archives should be shredded. But the ease of access by all and sundry means that past mistakes can now haunt someone for the rest of their lives.
My suggestion would be that individuals concerned should be able to require the removal of on-line copies once their conviction is spent in their jurisdiction. So in the UK, this would mean that once a conviction is spent under our Rehabilitation of Offenders Act, that person would be able to contact any archive where the article is held informing them that the conviction is spent and that the on-line record should be removed.
In the case of Mario Costeja González, Google (and other search engines) were forced to remove certain links from search results. Whilst this decision is qualified, for example Google would not have to remove information if there is a general interest to the public in keeping the link on-line or if it refers to a person who is in public life, it is difficult to assess for certain on what grounds Google would delete information because the court rather left it up to them to make the final decision about whether the applicant's justifications for removing their link are warranted.
Google now have a page where people can apply to have links removed but where criminal convictions are concerned, they don't. Appeal to the UK's Information Commissioner is the next step, but again, a criminal conviction, even if the offence was decades ago, and the conviction spent under the ROA, the ICO deems it in the public interest that the search links should stay.
Once convictions are spent, the items should be also removed from the internet archives of the original publisher. As I said, hard copies would remain available in their physical archives. Such removal would prevent re-indexing later by the same or other search engines. Often these articles are now directly linked to Facebook pages particularly those campaigning against certain crimes, so removal from search engines alone would not create the privacy enabling rehabilitation. A criminal record can now turn into a form of life sentence.
We need a fundamental look at this because the act was passed in 1974, and the information age has moved on so much by now that despite recent amendments, it is antiquated and irrelevant as far as the availability of past convictions is concerned.