Do Lawyers Have A Right to Be Forgotten?

Right to be forgottenEarlier this week, Google definitively lost a case before the highest court in the European Union. As you’re no doubt aware by now, the EU’s Court of Justice ruled that, in keeping with the EU’s robust privacy laws, Google must remove personal data that is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.”

The case centered on a Spanish national, Mario Costeja Gonzalez. Mr. Costeja Gonzalez, when Googling himself, discovered that Google’s search results included links to two 1998 newspaper articles concerning debts owed by Mr. Costeja Gonzales. Mr. Costeja Gonzalez argued that the debts had been cleared and the links were therefore irrelevant. The Court agreed.

The Court held that Google (and any search engine operating in the EU) is a data processor and controller that must comply with a 1995 EU Data Protection Directive. In accordance with that Directive, the search engine operator must, “in certain circumstances” remove links to web pages published by third parties and containing information related to the person from its search results.

The Ruling’s  Effect

What are those circumstances? This post from iMedia Blog lays them out. The ruling only applies to private individuals, not organizations. The content does not need to be removed, only the link to the content. The information both has to be out-of-date and create a misleading impression of the person. And finally, the information cannot be of public interest. As iMedia points out, if Mr. Gonzalez had been running for public office, he would have lost his case.

But still, this holding is huge. Essentially the Court has placed on Google the burden to remove search results that link to websites over which Google has no immediate control, if Google is informed that the data on those websites are inadequate, irrelevant or excessive. This is, as many have termed it, “the right to be forgotten.”

Now, as every post and article about this holding will tell you, there is no right to be forgotten in the United States. If anything, we in the United States have a right to remember every single thing anyone has ever put out in public for the rest of space and time.

But perhaps we do need a right to be forgotten. First Amendment attorney Mark Randazza makes a good argument against the eternal nature of the Internet. He asks, is that how we want to live?

Until recently, humans had comfort in knowing that mistakes were rarely forever. But the Internet has brought us a “mistakes are forever” society. Now, even a financial hiccup 16 years ago remained as prominent for Gonzalez, as if it happened yesterday. Now, a revenge porn picture will remain on a victim’s Google results forever, victimizing the subject every day. Even deserved criticism, like an old criminal record, will remain forever — as if it happened yesterday. Time is no longer linear for us.

 

It’s a good question, and one attorneys should be asking themselves. Let’s consider the young attorney who grew up on the Internet and social media without realizing that what she put on it can be found for years to come. She, like many in their mid-20s, lived her adolescence in the full glare of social media and the 24-hour news cycle where ill-advised YouTube videos become front-page news. And maybe it’s not front page news. Maybe it’s a comment made on a website where the attorney used her own name. Maybe it’s a newspaper article concerning something the attorney did when she was a college freshman. Maybe it’s an anonymous posting made about her in high school. This is all information that our new attorney wouldn’t want potential employers, or clients, to learn about her and which, she would argue, has no relevance to her current work. Should she suffer because the Internet is public and forever?

Consider also the lawyer who, 25 years ago, underwent disciplinary investigations or malpractice proceedings. The results of these proceedings are prominently featured in a Google search of that attorney. Are those search results still relevant to the attorney’s practice today? Or consider reviews of lawyers online. A disgruntled client posts a negative review of a young attorney just starting his practice; 15 years later, that negative review still comes up in search results for all the world to see. The attorney argues that those links are no longer relevant, and in fact are misleading. The links should be forgotten.

As of now, the European Union gives its citizens, including attorneys, the right to be forgotten. Should the U.S. follow? I’ll leave that to you to decide.

Michelle Silverthorn

Michelle Silverthorn

Former Diversity & Education Director at Illinois Supreme Court Commission on Professionalism

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Michelle Silverthorn

Michelle Silverthorn

Former Diversity & Education Director at Illinois Supreme Court Commission on Professionalism

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