Collateral Consequences and the English “Right to Be Forgotten”

Christine Braamskamp and Peter B. Pope

Earlier this year, the English High Court issued a judgment that is astonishing to American eyes. The Court ruled that an ex-offender had a right to have links to accurate information about his criminal conviction and sentence removed from search engine results when his name was searched. In doing so, the Court wrote about the policy under English law of an offender being deemed “rehabilitated” and having the conviction considered “spent”—no consequences any longer stemming from it. The spent nature of the conviction then became one of the pillars of a decision that the ex-offender had a “right to be forgotten.”

As a matter of comparative law, the decision is doctrinally fascinating. US lawyers—raised from their first year in law school on First Amendment jurisprudence—can scarcely grasp the notion of the judiciary limiting access to accurate newspaper accounts on the grounds that the old information ought no longer be relevant.

In the same month as the English decision, the Bronx Defenders sued the New York City Police Department (NYPD) in New York courts alleging that the NYPD violated New York’s sealing statute. Under that law, if an arrest fails to result in a conviction, then the arrest records must be sealed and are unavailable to the public and to law enforcement. The lawsuit alleges that, instead, the NYPD was systematically and purposefully failing to seal arrest records of persons who were legally innocent and it sometimes even leaked the information to the press.

It is a stark contrast. On one side of the ocean, a branch of the government is protecting the reputation of a duly convicted criminal. On the other side, there is an allegation that a branch of the government is purposefully sullying the reputations of the arrested but legally innocent.

The collateral damage imposed by the stigma of an arrest or conviction is, of course, well known to policymakers. The stigma of a criminal conviction is frequently a high barrier to getting a job, and ex-offenders without jobs become recidivists at starkly higher rates. And, as the High Court case points out, there are practical consequences to ex-offenders and their families even many years after their convictions if they never recidivate.

In this article, we try to point out some of the common ground and attempt to parse some of the transcontinental differences. There is a shared concern that contact with the criminal justice system can unduly stigmatize. There is a vast difference in what to do about it.

Rehabilitated Offenders in England and Wales

Under the law of England and Wales, most convictions become “spent” after a certain amount of time. Section 4 of the Rehabilitation of Offenders Act 1974 states, “[A] person who has become a rehabilitated person . . . shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction . . . .” In essence, they are entitled to hold themselves out as having a clean record once the conviction is spent and, in most circumstances, the rehabilitated person is not required to admit or reveal the existence of the spent conviction.

The right expressed in Section 4 is not unqualified under English law. It is an aspect of the law of personal privacy and, as such, will inevitably come into conflict with other rights, including the rights of others to freedom of information and freedom of expression. Accordingly, over time the English courts have made it plain that the simple fact that a conviction has become spent under the legislation does not mean that there is an automatic right to be forgotten. Courts balance the competing interests of the right to privacy (or, indeed, the right to enjoy a family life under Article 8 of the European Convention on Human Rights) and the right to freedom of information. This requires the court to balance the nature and extent of any actual or prospective harm against the nature and quality of the societal benefits to be gained in any individual case by the use or disclosure in question.

NT1 and NT2 v. Google Inc. LLC

In NT1 and NT2 v, Google Inc, LLC, two ex-offenders sought to rely on a decision by the Court of Justice of the European Union (CJEU) in Google Spain SL & another v. Agencia Espanola de Proteccion de Datos (AEPD) and another (Case C-131/12 [2014] QB 1022). In Google Spain, the CJEU interpreted the Data Protection Directive 95/46 EC and the Charter of Fundamental Rights of the European Union 2000/C 364/01 as creating a qualified right “to be forgotten.”

NT1 and NT2 were two businessmen involved in separate business dealings. Each had been convicted of criminal offenses. Both cases received press coverage at the time of conviction and imprisonment, so anyone with an Internet connection and keyboard could years later learn all about the convictions simply by searching their names. After the men’s sentences became spent, they asked Google to remove links to the contemporaneous media reporting. NT1’s request to Google was only partially successful, and NT2’s request was entirely unsuccessful, so NT1 and NT2 sued. The High Court upheld NT2’s claims and denied NT1’s.

With respect to NT2, over a decade after his imprisonment and with his conviction spent, the businessman had trouble finding banks that would do business with him and he lost business opportunities. Close members of his family were asked about “their association” with him. He was asked repeatedly what it was like to be in prison. He worried that his young children would be shamed.

Applying EU law and the Google Spain case (currently binding in the UK), the High Court ordered that Google remove links to newspaper articles that were published long ago and were still online. The articles themselves were not ordered to be taken down, just the search engine results listing and linking to them.

The Court ruled that the public’s right to know about a highly publicized criminal case was outweighed by the businessman’s right to have his old conviction be forgotten: “[T]he crime and punishment information has become out of date, irrelevant and of no sufficient legitimate interest to users of Google search to justify its continued availability.” The Court continued: “NT2 has frankly acknowledged his guilt, and expressed genuine remorse . . . . There is no real need for anybody to be warned . . . .”

The Court emphasized that the “right to be forgotten” was not an automatic rule but an individualized balancing based on a close analysis of the facts. As Mr. Justice Warby stated, “It is not a simple matter of applying s 4 of the 1974 Act, without regard to other factor or considerations. Such a hard-edged approach would be incompatible with human rights jurisprudence, and the fact sensitive approach that is required.”

Underscoring its point, in the same judgment, the Court denied the de-indexing of old, accurate articles for the other claimant, NT1. Mr. Justice Warby distinguished NT1’s and NT2’s cases by pointing out that NT1 was less reputationally sound than NT2: “He has not accepted his guilt, has misled the public and this Court, and shows no remorse over any of these matters.” In addition, the Court found that it was only due to a change of the law that NT1’s conviction was now spent (it would not have been under the law as it existed when he was convicted), so “at the time he had no reasonable expectation that his conviction would ever be spent.” In all, said the Court: “His business career since leaving prison made the information relevant in the past to the assessment of his honesty by members of the public. The information retains sufficient relevance today.”

Recognizing the wide-ranging implications of this judgment, Mr. Justice Warby allowed NT1 permission to appeal his decision to the Court of Appeal. The debate as to the right balance to be struck between the right to be forgotten following a spent conviction and the right to accurate information therefore will continue to be explored in the English courts, including, possibly, the Supreme Court. Whether this debate will be impacted by Brexit and the United Kingdom’s withdrawal from the European Union, including its Directives and Regulations, is yet to be seen.

The longstanding principle of the English criminal justice system, underpinned by public policy, however, will likely remain that “once a criminal has served his or her time, it is important that the ability of that individual to rehabilitate themselves is not unduly prejudiced.”

R.C., J.J., and A.G. v. City of New York

The approach the English High Court used in the NT1 and NT2 case is virtually unimaginable in an American court. As Floyd Abrams, the dean of the US First Amendment Bar, said about the case, “Viewed through America eyes, every aspect of the court’s ruling would have been at odds with the First Amendment.” As Abrams wrote, “Truth is no defense for Google; lack of continued ‘relevance’ carries the day.” To have the government limit the dissemination of truthful speech, he said, “is nothing less than a form of rewriting history.” Thus, Abrams observed, “An American judge confronted with such a case would probably have responded that the First Amendment would not permit even the beginning of engagement in what is nothing less than official censorship.”

Consequently, in the United States, we are seeing litigation over collateral consequences in a completely different posture. For example, in the same month that the English High Court decided the NT1 and NT2 case, the Bronx Defenders and the law firm Clearly Gottlieb brought a class action suit alleging that the New York City Police Department is systematically violating New York’s sealing laws. The harm the lawsuit attacks is collateral damage imposed by a mere arrest (rather than a conviction) in circumstances where the arrest terminates in favor of the person arrested.

Under a 42-year-old New York statute, when an arrest terminates in favor of a defendant, the arrest and prosecution are “deemed a nullity and the accused shall be restored, in contemplation of the law, to the status he occupied before the arrest and prosecution.” Except where required by statute or court order, “no person shall be required to divulge information pertaining to the arrest or prosecution.” (N.Y. Crim. Proc. Law § 160.60.) The law requires the police to return or destroy fingerprints and mug shots. Other sealed arrest record information is supposed to be available only with a court order. Enacted almost a half-century ago, the sealing law has not been widely viewed as an affront to the First Amendment. For decades cases have been routinely dismissed and sealed daily in New York courts with no objection—or even any real attention.

The Bronx Defenders’ lawsuit alleges that the law is routinely violated, that the NYPD systematically stores, uses, and distributes sealed record information, including to the press. The complaint tells the story of R.C., whose records from a sealed arrest when he was 17 years old were used in a robbery investigation when he was in his 20s. When R.C. was in his 20s, NYPD detectives used his mug shot from the sealed arrest in a photo array for a robbery in the Bronx (it was the third photo array shown to the complaining witness, who had selected no one in the prior two). There was a hit on the array and R.C. was arrested. Eighteen months later, prosecutors dropped charges against R.C., who, according to the complaint, had not even been in New York State at the time of the robbery.

In the meantime, R.C. had been arrested in front of his mother at his home in upstate New York, spent two days in jail, and attended 10 court appearances over 18 months. He moved from living with his mother in the Hudson River Valley to living in the Bronx with his grandmother so he could make his court appearances more easily. He lost his job as a shift manager at a chain restaurant.

All this was set in motion because R.C.’s mug shot from his earlier arrest had not been destroyed or returned as the statute required. By no stretch of the imagination had his prior dismissed cases become a “nullity.”

The complaint also alleges that the NYPD unlawfully leaked sealed records to the press in high-profile arrests, including how many cases were sealed and what they involved.

The Contrast

At the time of writing, the New York lawsuit was only at its earliest stages, but both similarities and differences between the New York and English cases are already apparent.

As to differences, the primary difference is that the R.C. lawsuit was not filed against an Internet service provider, a (if not the) main vector to finding newspaper articles that have long been in the public domain. The lawsuit instead was directed at a government agency and is focused on what that agency does with its own records. Though important, that difference alone will unlikely avoid all First Amendment ramifications; there is broad, ongoing general debate in the US about government records (and leaks of government documents) and the First Amendment.

Another difference is the nature of the information each lawsuit seeks to make less accessible. The NT1 case was aimed at a criminal conviction for a serious crime that was entered in open court and resulted in imprisonment. In contrast, the R.C. case is aimed at arrest records where the case was resolved in favor of the arrested person. As the governor’s 1976 approval memo said about the sealing law, “This legislation is consistent with the presumption of innocence, which simply means that no individual should suffer adverse consequences merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law.” It thus “protects the rights of individuals against whom criminal charges have been brought, but which did not ultimately result in a conviction.”

But there is a critical similarity as well. The fundamental principle underlying each lawsuit is that contact with the criminal justice system can impose collateral consequences that exceed what fairness demands. To be sure, the two suits strike at far, far different points on the spectrum—a conviction versus a baseless arrest. But at bottom both are premised on the notion that, at some stage, an actual, historical government action should cease imposing collateral harm and, consequently, that the government should make information about that event hard to get. One point of the spectrum has historically been noncontroversial: New York’s sealing unfounded arrests. The other—any approach similar to the newly evolving European right to have a conviction forgotten—has resulted in extremely serious First Amendment objections.

In the new world of big data, we are only at the very beginning of this discussion. For example, one domestic legislator already has looked abroad and proposed a state “right to be forgotten” statute that borrows from European law. The bill was quickly criticized as antithetical to the First Amendment and there has been no action on it.

Other state legislatures will seek different solutions, wrestling with how to mitigate the collateral consequences of contact with the criminal justice system through steps consistent with the commands of the First Amendment. And even putting to the side the question of what methods are constitutional, there will be debates as to what kind of history legislatures even want to try to mitigate (Unfounded arrests? Low level drug possession? Sales? Sex crimes? Homicides?). For example, New York enacted a law just last year that allows convicted offenders to seek sealing of up to two crimes after 10 years have passed. It excludes sex crimes and particularly serious felonies, and sealing is not granted as a matter of right. In addition, the statute also made it unlawful for prospective employers to inquire about or act adversely based on convictions sealed pursuant to the statute. In other words, although the sealed convictions are not “forgotten” in the European sense of being purged from search engine results, employers may not lawfully discriminate on the basis of them. While this is a single recent example, over two dozen states have enacted or expanded “record-closing” laws since 2012. (See J. Radice, The Reintegrative State, 66 Emory L.J. 1315, 1370 (2017) (examining state reforms).)

Similarly, there will be initiatives along the lines of the “Ban the Box” movement, which seeks to forbid asking about convictions on job application forms, deferring questions like that for later in the process on the theory that ex-offender applicants should get at least a chance to interview and show that they are fit for the job. States are, once again, playing their famous role as laboratories of democracy. There will be spirited disagreement and much litigation.

For centuries and during times of vast technological change, our adversarial system has taken controversies one at a time to resolve disputes that arise when important rights and goals conflict. We are, for sure, here again, and here with some of our most cherished values at stake—freedom of speech, access to truthful information, rehabilitation, and redemption.

Christine Braamskamp

Christine Braamskamp is a co-chair of Jenner & Block’s Investigation, Compliance and Defense Practice, based in London. Chris is a barrister and represents individuals and entities in investigations, prosecutions, and regulatory matters and has conducted internal investigations around the globe.

Peter B. Pope

Peter B. Pope is a co-chair of Jenner & Block’s Investigation, Compliance and Defense Practice, based in London. Peter is a US-admitted lawyer and represents individuals and entities in investigations, prosecutions, and regulatory matters and has conducted internal investigations around the globe.