The Facts: What is the Right to Be Forgotten?
The advent of nearly complete and unfettered access to information – the likes of which can be preserved online forever – raises more questions than it does answers. With the rise of the Internet over the last twenty years, the Internet has morphed into an empowering tool, redefining how we, as humans, interact and learn about one another. However, such transparency inevitably comes at a cost, and it’s catching up to us.
For example, what if a newspaper made available online an article describing a traffic accident you were responsible for nearly 20 years ago? And, what if a Google search of your name listed the article as one of the top results?
That’s precisely what happened to a Belgian doctor in 2008 when newspaper ‘Le Soir’ made part of their archives available online; including a 1994 article chronicling the doctor’s drunk driving accident that ultimately took the life of two people. Although the doctor had paid his societal dues for the crime, the Editor in Chief of Le Soir refused his request to remove his name from the article. Subsequently, in 2010, the doctor applied to a Belgian court seeking an order to have the article anonymized.
This was the beginning of the right to be forgotten in Europe.
Online Defamation Tip: Linking between various social media accounts – yet keeping the most important parts private – and openly commenting on positive news articles, posts, and blogs, is an effective way to create a “spiderweb” of constructive online content. Doing so will ultimately cause Google’s content crawling algorithm to rank higher for positive content about you, while suppressing negative and potentially defamatory content.
Additionally, what if an article detailing a minor shoplifting instance ten years ago was the first search result for your name? Or, what if a vengeful ex-spouse decided to post non-consensual pornographic pictures of you on a revenge porn website? The possibilities are endless – and, they are ruining people’s lives and reputations.
So, what exactly is the right to be forgotten and why is it so important?
What is the Right to Be Forgotten & What Does it Cover?
Created and implemented in 2014 after the European Union Court of Justice ruled that inappropriate photos posted on the Internet at eighteen did not need to live on the Interweb forever, the right to be forgotten is a comprehensive and catch-all concept for the protection and autonomous determination of a person’s digital footprint. Google Spain v AEPD and Mario Costeja Gonzalez (Costeja) (2014).
Specifically, the right to be forgotten strives to balance an individual’s right to privacy and data protection, with the general public’s legitimate interest in accessing such information. And, such concept online applies to information that is:
- Irrelevant, and
- Inaccurate for the purposes of data processing and access.
Furthermore, not only does the right to be forgotten cover information and texts posted online, it includes photographs, videos, and other forms of media which fails to adequately reflect a true representation of “your person” now.
Note that such concept online extends to the European Union and Argentina, and has still yet to be fully implemented or affirmed in other countries.
Defamation Law Fact: A large percentage of proponents who support the right to be forgotten as a fundamental right cite the increase of revenge porn and non-consensual pornography as one of the core reasons for its need. Furthermore, they also note the appearing of small and petty crimes in search results, which a person may have committed tens of years ago.
If you have information or pictures posted on that Internet that you want removed, reach out to the internet defamation removal lawyers of Minc Law today!
At Minc Law, we understand the ins and outs of online defamation, and have removed over 25,000 pieces of false and defamatory content in our tenure. Furthermore, we boast a nearly 100% online defamation takedown and removal rate, and all for a flat reasonable fee.
As the right to be forgotten and online content removals do have some intersection with freedom of speech and freedom of expression, it is a highly nuanced area of law, therefore we strongly recommend you consult an experienced attorneybefore removing content from the Internet.
Contact us today to schedule your free, initial no-obligation consultation by calling us at (216) 373-7706 or by filling out our contact form online.
We’re here to fight for your reputation.
Oliver G v. Le Soir: Right to Be Forgotten Case Background
(Read Here in French)
In the case of the Belgian doctor, the trial court granted the anonymization request in 2013 and ordered Le Soir to replace the doctor’s name with the letter “X” in the article. On September 25, 2014, a Belgian Court of Appeals upheld the trial court’s ruling, noting a need for the delicate balancing between the right to freedom of expression and the right to privacy under the European Convention on Human Rights (ECHR).
Specifically, the Court of Appeals in Liege held that:
- The facts of the 1994 car accident had no actual news value;
- Removing the doctor’s name changed nothing about the substance and overall effect of the article – as there is no actual public interest in knowing the identity of a non-public figure responsible for an accident nearly 20 years ago; and
- Anonymizing the electronic version of the article steal means the original paper archives remain intact, thus any arguments for preserving the full integrity of the archives fell short.
Post-ruling, Le Soir then appealed to the Belgian Court of Cassation (the highest court in all of Belgium), seeking to have the judgment set aside.
Basing their decision on the balancing act between the rights enumerated in Articles 8 & 10 of the ECHR, which includes the “Right to be Forgotten” (RTBF) and the right of a free press, the Court of Cassation echoed the same sentiments as the appellate court. Ultimately, the Court held that the existence of an online article describing long since past events, such as drunk driving, is likely to cause someone (like the Belgian doctor in question) a disproportionate amount of damage compared to its benefits of unfettered freedom of expression and press.
This is a clear case of where the right to be forgotten prevails. As a result, the Court of Cassation ordered the doctor’s name be removed from the online article.
United States Defamation Law Fact: In the realm of online defamation removal (and defamation law), the United States is generally viewed as a more pro-defendant defamation jurisdiction, due to the enforcement of the Constitution and First Amendment. On the other hand, European and other Commonwealth countries, such as Australia, Canada, and the United Kingdom, are typically considered more pro-plaintiff.
How Does Right to Be Forgotten Impact Internet Defamation Law?
Normally, in a case like this, a court will order a newspaper and/or specific search engine to take steps to ensure the article or content in question does not appear in search engine results. However, this case marks the first time – either in the U.S. or abroad, that a judicial body ordered an online article to be anonymized.
It’s important to keep in mind however, that a different set of circumstances could have produced a much different result. And, it’s clear the Belgian courts did not buy the arguments in favor of maintaining the full integrity of Le Soir’s online archive. This is most likely because they saw the archiving of the online article as a new disclosure of a previous conviction, which could ultimately interfere with the doctor’s right to be forgotten (RTBF).
What’s not clear is whether any arguments for a less drastic remedy were entertained by the Belgian courts. The Belgian doctor seemed to only be mentioned briefly in the article complained of. So, would a different article, coupled with a different set of circumstances, produce a different outcome?
Nonetheless, this case is sure to catch the attention of those involved in any data protection or privacy law work around the world.
Press vs. The Public
Central to this case is the balancing of the right to be forgotten against the rights of the press and general public. As mentioned above, there must be a legitimate interest by the public in accessing such information.
As with any case, facts matter, and it’s important to understand that at the time Le Soir digitized the archives, the doctor’s conviction was considered ‘spent.” This means that the conviction was essentially ignored after a certain rehabilitation period – the length of which, determined based on the nature of the offense.
This formal recognition by society of an individual’s rehabilitation supports arguments for anonymization in any case that calls for balancing privacy rights with freedom of the press and/or expression. If a particular criminal justice system seeks to remove the ill effects of an individual’s previous transgressions and wrongdoings, it makes sense in cases like this, to tip the scales in favor of the right to be forgotten. After all, the RTBF aims to enable individuals to determine their future in an autonomous way, free of any stigmatization that may accompany detestable or accidental past acts.
Ultimately, removing the doctor’s name from the online article coincides with both the goal of “spent convictions” and right to be forgotten.
How Does This Ruling Impact U.S. Defamation Law?
While it remains to be seen what, if any, effect this case will have on the U.S. legal system, it’s hard to deny that powerful arguments exist on both sides of the issue.
Currently, no online right to be forgotten (RTBF) laws exist in the United States. However, that may change soon. Might decisions like the one of our Belgian doctor in question influence the United States, causing us to follow suit in some way, shape, or form? Some organizations and persons hope that’s the case.
For the time being though, we seem to still be left with more questions than answers.
It’s also worth noting that a 2015 survey by Adweek found that roughly 90% of Americans would like some form of the right to be forgotten to be implemented in the U.S. However, with the protections guaranteed under the First Amendment of our Constitution, this will likely take some ironing out before it passes muster and is implemented.
So, we ask you, what is more important to you? Freedom of speech or the right to privacy?
Online Defamation Removal Tip: Starting a blog is an effective way to suppress (but not completely remove) defamatory and negative Internet search results. Google’s content crawling algorithm rewards constructive and consistent content, and punishes dubious and poorly written text.
Now, let’s take a look at five easy tips you can keep in mind to lower your chances of being libeled/defamed online and having your private information broadcasted for the world to see. Just remember, it can’t be re-posted and shared if it never is “kissed” by the Internet.
5 Tips to Lower Your Chances of Online Defamation & Privacy Attacks
Below are just several easy tips you can keep in mind in order to minimize your digital footprint and ultimately protect yourself against libelous and defamatory online attacks (and privacy invasions).
- Re-examine your privacy settings on all social media profiles and update them accordingly,
- Delete any unnecessary, old, or unused accounts and information.
- Create a throwaway email address.
- Use an incognito browser and other anti-tracking tools when browsing the Internet.
- Think twice before posting anything on social media or the Internet.
Nikki Catsouras Death & Photograph Controversy
In 2006, 18 year old Nikki Catsouras died in a high speed car crash after losing control at the wheel of a car, which belonged to her father.
Subsequently, photographs of her disfigured body were leaked and published across the Internet, leading to her parents suing the California Highway Patrol while ultimately seeking to remove the photographs from online. According to poplar U.S. magazine ‘Newsweek,’ Catsouras’s accident was “so gruesome the coroner wouldn’t allow her parents to identify their daughter’s body.”
The photographs, taken as part of standard accident procedures, received viral attention online, leading to a fake Myspace website with links to the photograph, along with anonymous email copies sent to the parents to taunt them. Such photographs lead to widespread online harassment, and caused the family to stop using the Internet altogether.
Unfortunately, while the leaking of the photographs was unprofessional and harmful to the family, the judge of the case ruled that the two dispatchers who photographed (and leaked) Catsouras were not under any privacy to protect the privacy of the Catsouras family. Furthermore, the court did not find any law applicable for punishment.
In February, 2010, the California Court of Appeal for the Fourth District reversed the initial judgment, noting that the Catsouras family could in fact sue the highway patrol and defendants for emotional distress and negligence.
While the Catsouras case is one ripe for the application of the right to be forgotten law, under different circumstances (such as if she were a public figure), similar cases could ultimately be more complicated. How should the right to be forgotten be balanced in the context of a grieving family and the general public’s interest in accessing specific information? This is just another example of the many complications and nuances that will likely need to be worked out before the right to be forgotten takes shape in the United States.
Curious about if the right to be forgotten law is ever coming to the United States? Check out our comprehensive blog postbreaking down the pros and cons of the law, its definition, and the permanency of online posts on the Internet.
Remove Defamatory Content By Working With the Defamation Removal Lawyers of Minc Law Today!
If you’ve been the victim of online defamation or are looking to remove outdated or other malicious content from the Internet, contact the internet defamation removal lawyers of Minc Law today!
At Minc Law, we boast a nearly 100% online defamation removal rate, and have removed over 25,000 pieces of defamatory and false content from the Internet and online forums – and, all for a flat, reasonable fee.
Our nationally recognized defamation attorneys know who to work with and how to work with them in order to secure painless and permanent removals. Furthermore, we’ve worked tirelessly with countless website administrators, content managers, and third-party arbitration firms, so rest assured you’re in good hands when choosing us.
Here’s what you can expect when working with the defamation lawyers of Minc Law:
- Courtesy & Respect: We understand how invasive and stressful online defamation is, so take solace in knowing that the defamation lawyers of Minc Law are always on your side. After all, your goals are our goals.
- Open Dialogue & Communication: Some attorneys tend to go missing after the removal process has commenced, not us. We’ll make sure to stay in constant contact with your regarding the details of your defamation removal and case. We’re here to keep you informed.
- Websites Respond to Us: Having removed over 25,000 pieces of defamatory content and boasting a nearly 100% online defamation takedown rate, websites and business respond to Minc Law.
To schedule a free, no-obligation initial consultation call us at (216) 373-7706 or fill out our contact form online.
We want to fight for your reputation.