The right to be forgotten in a world where everyone knows your name
By John C. Henegan
MPA General Counsel & Libel Hotline Attorney
“[It may not be true,] but it’s accurate.” – Megan Carter in Absence of Malice
The MPA Hot Line occasionally gets a call from a member paper about a request that the paper delete an old article about an arrest or an indictment that is available on the paper’s web site or shows up in response to a search engine request such a Google or Yahoo. Sometimes the explanation why the article should be deleted is based on a misunderstanding about the criminal process and the differences between an arrest and an indictment and the difference between an indictment be nolle processed or dismissed. Occasionally the arrest charges have been dropped or the grand jury refused to return an indictment, and regardless of whether this information has been reported, the subject of the original story doesn’t want the information available to the public any longer.
As long as the information in the original story was substantially true or was based on an official public record such as a news release from the state, county, or local law enforcement office involved the original story is non-actionable. There is no state statute or common law principle that requires the paper to delete the article from its web site, and a state statute that compelled the paper to publish a notice or article that the prior charges has been dropped etc. would be ruled unconstitutional under the First Amendment which prohibits compelled speech. These principles are so ingrained in our Nation’s jurisprudence that a recent decision of the European Union Court of Justice (“EUCJ”) establishing the so-called “right to be forgotten” under European law has sent media companies and search engines located in the United States whose works are available overseas roiling.
In 2010 Mario Costeja González, a Spanish citizen, filed a complaint with the Spanish Data Protection Agency against his local Spanish newspaper, Google Spain, and Google Inc., contending that his right to privacy was being infringed due to a 1998 legal notice that his home was being foreclosed. The newspaper had published the 36-word legal notice in Spanish, and it was available on the paper's web site and Google’s search results for Costeja's name. Costeja contended that the foreclosure proceedings had been fully resolved for several years and the information had become entirely irrelevant. He asked, first, that the paper be compelled to alter the pages in question so that the notice no longer appeared on the paper's web site; and second, that Google Spain or Google Inc. be compelled to remove the personal data so that it no longer appeared in search results for Costeja.
In May of 2014, the European Union Court of Justice ruled for Costeja. The EUCJ ruled: (a) the EU’s 1995 Data Protection Directive, which applies to controllers of public data, does not apply to the paper’s web site but it does apply to search engines such as Google Spain that promote the selling of advertising space even though the company’s data processing server is in the United States; and (b) individuals have - under certain conditions - the right to be forgotten and compel search engines to remove links with personal information about them without regard to the economic costs to the search engine in not being required to pull down the data at issue. The EUCJ held that its ruling applies whenever the subject information is inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for the data was processed and in the light of the time that has elapsed since the info was first published. The EUCJ concluded by noting that the right to be forgotten is not absolute, and it must be balanced on a case-by-case basis against the rights of freedom of expression and of the media. According to one paper, the day after the EUCJ's decision, more than 840 articles about the legal notice, Costeja, and his victory appeared on the internet.
The amount of information that is available on the internet is in part directly attributable to the immunity provided by Section 230 of the Federal Communications Decency Act of 1996 to internet service providers and the strict construction that the federal courts have applied to Section 230. As a result, ISPs are essentially treated as distributors rather than re-publishers of the information that they make available, and ISPs are not liable for the content of the information on their sites. One of the paradoxes arising from the ever increasing amount of information that is available on the internet is while virtually everyone appears to enjoy reading about other people, they don’t share the same view about what the public should know about themselves. The immunity that the 1996 FCDA provides to ISPs is not available to newspapers and certain segments of their web sites. As a result of the nascent ill-defined “right to be forgotten” and its potential application to certain privacy torts, however misguided and inappropriate that may be, newspapers and other publishers can anticipate that the number of requisites that they will receive to pull down articles from their websites will only increase.
John C. Henegan is a member of Butler Snow, PLLC, and counsel to the Mississippi Press Association. Members can send general questions about libel or requests for story review to firstname.lastname@example.org.