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Bankruptcy and the right to be forgotten Richard Stephen
20 August 2015

money

The issue over whether a person’s past should continue to be discoverable online is one of the big privacy debates of our time. Although the concept of the ‘right to be forgotten’ has been around since 2006, it gained momentum in 2014 when the European Court of Justice agreed that a Spanish man, Mario Gonzalez, had the right to get Google to “break the link” to online information about his past financial difficulties.

The ECJ decision has since become a cornerstone in a worldwide debate about whether people have a right to have parts of their past erased from search results, in the same way as New Zealand’s ‘clean slate’ legislation works for some criminal convictions from seven years ago or earlier.

We have received a number of complaints this year which, it could be said, reference the right to be forgotten. The Commissioner has also written a blog post about the subject.

One complaint involved a bankruptcy that had been annulled in 2012. This annulment was published in the New Zealand Gazette, formerly a hard copy publication put out by the Department of Internal Affairs (DIA).

But in 2014, the Gazette became an online publication, and it retrospectively published online the names of people who had declared bankruptcy or No Asset Procedure (NAP). The retrospective material published included information dating back to 1993. In this case, the complainant was upset over the online publication of their bankruptcy details (which had been annulled). These details were searchable via Google and other search engines.

We notified DIA under principle 7 of the Privacy Act, which says that people have the right to correct information about themselves, if they think it is wrong, inaccurate, out-of-date, incomplete or misleading.

The publication of notices in the Insolvency Register is authorised by the Insolvency Act 2006 which required the Insolvency Office to publish specified information in NAP notices for a one year period. The Insolvency Office is also required to publish a notice in the Gazette.

The publication of notices in the Gazette is required under the Public Records Act 2005 which requires that notices are published in perpetuity as a matter of public record.

When we met with DIA to discuss the case, the Department acknowledged the ease with which information published in the online Gazette online could be found, particularly through Google. The Department considered the appropriateness and feasibility of blocking certain notices in the online Gazette.

While it was technically feasible to block a direct search of particular personal details on the Gazette website, it did not change the accessibility of the information as search engines could cache search results and the information could be copied and duplicated across a range of online sources. DIA also noted blocking online information while retaining a hardcopy record would make the public record inconsistent.

DIA said it was aware it might be unclear to some individuals that bankruptcy and NAP processes required the publication of their notices in perpetuity as a matter of public record. DIA said it had considered the need for improved communications to affected individuals about the availability of this information.

The Department also added text to the online Gazette notices to indicate if a person listed on the site had been discharged from bankruptcy or NAP. This explanation also indicated the bankruptcy period.

We conveyed DIA’s explanation to the complainant, and pointed out the actions the Department had undertaken to address their concerns and offered them an opportunity to respond. The complainant withdrew their complaint and the investigation ended on that basis.

The fact that DIA has to maintain an accurate historical record does not mean people should not be entitled to ‘move on’ with their lives. Subsequent users of the information should be aware that they are obliged to ensure that information is accurate, up to date, complete, relevant, and not misleading.

Under the Credit Reporting Privacy Code, recent debts and judgments are permitted to be listed on individuals’ credit reports for certain maximum periods before being required to be drop off (usually after no longer than 5 years).

In relation to single instances of bankruptcy and entry to ‘NAP’, references can remain on credit reports for four years from the date of discharge. But in cases of multiple bankruptcies, the information can remain indefinitely.

Credit reporters and other agencies that maintain people’s financial information must be mindful of the need to ensure the information is accurate because the implications of having inaccurate and out-of-date information can be costly to an individual.

Image credit: National Library of New Zealand

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