By:  Aaron Minc, Principal & Founder

A class action lawsuit set to be heard next month in Connecticut will decide a very significant first amendment question: Whether, in certain circumstances, we have the right to be forgotten or erase content from Internet that is no longer true.

The lawsuit arose when a nurse named Lorraine Martin and her two sons were arrested after police raided her home and found a small stash of marijuana, scales, and plastic bags. Since Lorraine probably had a clean criminal history, she was able to enter a diversion program, pay a fine, take some drug classes, and have the case against her tossed out. Under a Connecticut expungement/erasure law, all records of her arrest were subsequently automatically expunged from official state records.

Although Martin legally has a clean arrest record now (she can literally testify under oath that she has never been arrested and not commit perjury), she claims that she has become unemployable since the arrest because when potential employers search for her on Google, they find articles in online news archives with headlines like “Mother and sons charged with drug offenses.” Her lawsuit claims that the news articles published about her arrest are now false and defamatory.


Case update:

The Second Circuit found that when a news source reports on an arrest, and the government subsequently erases the arrest using a criminal erasure statute, the news stories do not become defamatory, because the historical fact of the arrest remains true. The ruling protected Hearst Corporation’s news outlets from having to modify or remove their online articles after plaintiff Lorraine Martin’s arrest for drug possession was erased for legal purposes using Connecticut’s criminal erasure statute (an expungement law). The case is seen by some as evidence that United States law cannot accommodate a right to be forgotten like the one established in the European Union in May 2014.

Source: Wikipedia


First Right to Be Forgotten Case

While the case presents very novel and technical First Amendment arguments about what it truly means to “publish”, the differences between “historical facts” and “legal facts”, and whether the circumstances constitute libel or defamation by omission, it highlights a very real and complex dilemma about the invasive power of the Internet.

The case illustrates a growing trend of backlash about way the Internet has fundamentally changed our ability to live private lives. A tension that will only continue to grow as more information about individuals and the world we live in is published online every day.

The First Amendment is wonderful and is one of the things that makes our country great, but I’ve personally encountered too many stories of people that simply don’t deserve to have certain information about very private aspects of their lives or history appear prominently in search engine results for the rest of their lives as a permanent record for the entire world to see.

It is my opinion that our society needs to afford individuals the right to have certain aspects of their lives forgotten. People need room to grow, to experiment, try new things, and sometimes, make mistakes without there being a permanent record of their tribulations that can haunt them forever. If we are continually presented with and have to judge someone based on their past, how are we ever going to able to judge someone for who they are in the present?

Although its predicted that the case will ultimately be dismissed before it is decided on its merits (which I personally hope it’s not), the lawsuit is likely the first of many to come that will continue to define the limits of the privacy of individuals on the internet. Stay tuned…

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