Dr. T.J. McIntyre:

The Deputy asked about the Internet and he is absolutely right that this is a problem. Of course it is not only a problem for convictions but for charges as well. Someone may have been acquitted but nevertheless the name turns up in a search. That is a problem. There are two questions. One is a narrow individual question. If an individual has an old conviction or an old mention of the fact that he or she was charged with an offence, can the person have it removed from the search results? In some cases it is possible. We have the so-called Google Spain principles and the so-called right to be forgotten, which was established by the European Court of Justice some time ago. If a conviction is spent then Google will normally de-list it. This means it will not show up in a search for the person's name although it will show up in the context of other searches. That makes it practically important to consider the reach of spent convictions. If a conviction is not spent, then Google is far less likely to de-list it.

That is a partial remedy. It is a remedy for people who are well-informed enough to know about the existence of this right and how to go about exercising it. However, it is not a great remedy for the average individual who is not aware of the finer points of European data protection law. Moreover, it does not really do anything to address the wider issue, which is that of employers searching against the names of job applicants and looking at the information thrown up. The information might be completely inaccurate. It might be information that relates to someone else of the same name. There are several people with the name T.J. McIntyre online. I am not a science fiction writer. I do not manufacture health foods in Boulder, Colorado. However, if someone searches my name these are some of the first results to be seen.

There is a wider data protection issue that we might consider. Should the Data Protection Commission be issuing guidance on this point? Should it restrict how employers search against job applicants on the Internet?

The Data Protection Commission used to have guidance on this point online but it seems to have been taken down in the meantime. It would be very helpful to see the Data Protection Commission issue guidance confirming that employers ordinarily should not be searching against people online, except having told them they are going to do that, with the opportunity to make representations on any information they find. In other words, if an employer finds information on T.J. McIntyre, it should show it to me and ask, "This guy who got the conviction, is he the science fiction writer, the health food manufacturer or the law lecturer in UCD?" On top of that, we should be making sure that employers are not looking for irrelevant information and information on old convictions, whether or not they are spent. It is very often going to be irrelevant information because it is not relevant to the particular employment.

To some extent, that is a problem that is outside the scope of the current discussion because it is not really within the reach of the spent convictions legislation. It is, however, within the reach of data protection law. As I said, the appropriate step would probably be for the Data Protection Commissioner to consider reissuing guidance in this area.