The right to be (un)forgotten

Saturday, 1 June 2024

Christopher Tett has spent time in custody for his offending but says a news article is keeping him anchored to his past.

In 2016 and 2017, he used the dark web to buy 24.45 grams of methamphetamine and 3.6g of ecstasy and when caught pleaded guilty to six charges of drug importation.

At his sentencing, in 2018, Judge Garry Barkle gave Tett credit for his rehabilitation efforts and, after factoring in the eight months he had already spent in custody, set a final jail term of two years.

The sentence was transferred to 12 month of home detention.

But Tett says a story published by Stuff about his sentencing in the New Plymouth District Court is ruining his chances to be re-employed and his ability to re-join the workforce is being tarnished.

Since the drug-related offending, Tett has also been charged with assault and said he was sentenced to four months of home detention and nine months supervision. However, this offending, which he was charged for in 2021, was not reported on at the time.

Tett, who has experience as a mechanical fitter, pipes technician and IT assistant, has been applying for lower paying jobs since serving his sentence, such as a factory hand, labourer and waiter.

Normally the interviewing process goes well, he says, and he is given a starting date, but soon after he gets a call back saying the situation has changed.

Last year, he was offered a position as a kitchen hand at a New Plymouth restaurant on a Wednesday with his first shift scheduled for the following afternoon.

However, later that day he received a call and the person who interviewed him said the position was no longer available.

The last time it happened was in January, Tett says, when another hospitality job opportunity vanished all of a sudden.

The 39-year-old has had more than a dozen job applications turned down because the person who interviews him googles his name and reads the article, which is the first result, he says.

But Tett says this information should not be used by potential employers to judge his suitability for jobs today.

“I wish they would take it down.”

Tett has not asked Stuff to remove the article. However, such a request is unlikely to be actioned, as Stuff’s policy states stories are only removed under exceptional circumstances, such as by court order.

If a request is made, a committee of senior editors, which meets monthly, decides whether the request is going to be accepted or not.

Stuff managing director masthead publishing Joanna Norris says Kiwi media companies abide by New Zealand law.

“Under New Zealand law, applications for [name] suppression can be made through the courts.

“When considering suppression, the courts take into account a range of factors that may include impact on employment.

“When a court issues a decision on suppression, we abide by those decisions,” she says.

So, Tett has been left wondering why New Zealand does not grant the right to be forgotten.

The right to be forgotten is a legal concept introduced in Europe after a ruling by the Court of Justice of the European Union (CJEU). It states people have the right to decide what kind of personal information is published online.

In 2014, the CJEU ruled that, in some circumstances, search engine operators were “obliged to remove links to certain web pages from the list of results that appear when a search is carried out for a particular name”.

This came to be known as the right to be forgotten, or de-referencing.

The CJEU ruled Google “is responsible for processing the personal data that appear on web pages published by other sources”. In that case, a Spanish citizen claimed an article published online by a newspaper was no longer relevant.

So the search engine operator had a responsibility to remove personal data displayed online “where the information is considered to be inaccurate, inadequate, irrelevant, no longer relevant or excessive for the purposes of data processing, but not simply because it is inconvenient to the subject,” the court ruled.

However, New Zealand does not have a similar privacy law and the Clean Slate Act (2004) only grants the right to withhold criminal records in specific circumstances.

People Against Prisons Aotearoa spokesperson Emmy Rākete says the type of treatment Tett has received amounts to legal discrimination.

“It’s completely allowable to discriminate on the basis of criminal records in this country and it means that punishment is eternal for people who have done prison terms,” she says.

Rākete, who is also a lecturer in criminology at the University of Auckland, says the Clean Slate Act only partially protects people’s privacy.

She says the Act allows a person to withhold certain information about criminal convictions, for example to employers, if that person has not been sentenced for the past seven years.

“But the Clean Slate Act does not apply to anybody who has received a custodial sentence, meaning imprisonment or home detention,” she says.

Rākete says long term unemployment means former inmates can be deprived of the necessaries of life, which can lead to committing further crimes.

“If we want a society where crime doesn’t happen any more, which I think most of us do, we can’t keep going along with this.

“I think it would be really valuable if we had a right to be forgotten in New Zealand as well.

“Because for the people who are directly affected it would mean the ability to rejoin human society again as full members, something which New Zealand explicitly denies to them,” she says.

Rākete says Tett’s case is an example of how the country allows employers to discriminate against former inmates.

“We live in a society where you need a job in order to be a full member of society, in order to experience the full human dignity that all of us deserve,” she says.

At times, former prisoners kept on the brink of unemployment then become part of “the reserve army of labour”, she says.

“This big population need jobs to live but can’t get them, and so are much more willing to accept worse pay and worse conditions – and this drives down wages across the economy as a whole.”

And it is not just Tett who is facing legal discrimination. Howard League Canterbury co-president Cosmo Jeffrey says former inmates’ inability to regain employment is a national problem.

He went to jail for two years, he says, but then managed to find a job post-imprisonment.

“I was lucky but it was struggle,” Jeffrey says.

The Howard League was established in 1924 in New Zealand to advocate for penal reform and for prisoners’ rights, and it was named after John Howard, who lobbied the England Parliament in the 18th century for a more humane prison system.

Jeffrey says his advice for former inmates is to come clean during the interviewing process and be upfront about their troubled past.

Back in New Plymouth, Tett says living on and off the benefit and the lack of a stable income has led to him experiencing homelessness.

He lives with a 3-year-old dog called Caesar and is working on turning an old white bus gifted to him by some friends into a suitable place to live in permanently.

“But there is still a lot to do,” he says.

And in the meantime his job hunt continues.

“It’s [the news story] been up for ages man, I really wish they would just take it down.”

Clarification: This story has been updated to reflect the fact Tett has been sentenced on one charge of assault in the years since his drug-related offending. This offending was never reported on at the time but has been clarified since this story was first published. (Amended, August 6, 2024, 2.40pm)