Food for Thought #1: The right to be forgotten

The right to err is one of the most basic human rights. Few people have never had any faults throughout their life – yet mistakes give them an opportunity to become a better version of themselves. Our own mistakes are seldom entertaining; however, other people’s misfortunes can be a source of entertainment. In German there is even a word for it: “Schadenfreude”, which means pleasure derived from a misfortune that is not your own.

Mistakes committed by other people can also be intriguing, especially when it concerns celebrities. In past times, when news did not spread as easily around as it does nowadays, newspaper agencies would have to issue a new print to bring the breaking news to the attention of their readers.

Newsvendors would roam the streets shouting “Extra! Extra! Read All About It!” to make sure everyone knew the exclusive story behind it and as a rule, they would sell more editions than their competitors. The newspapers back then were (and the paper version still is) printed early in the morning. Any breaking news would have to be manually spread around to become known. Nowadays news is spread around differently.

Newsvendors no longer announce the breaking news and the reprint, as this function is replaced by a simple push notification on our smartphones. News is available at any time of the day and is freely accessible to most of us. Search engines like Google, Bing or Yandex make news more available than ever. No matter how old or how fresh the piece of news is, these search engines index everything. This also includes news on suspected criminal offences, even if those suspicions eventually turn out to be based on false presumptions.

Although an acquittal for a former suspect certainly is “breaking news”, in practice the media regrettably find this much less newsworthy than the suspicion. As a result, the news messages stating the person’s connection to a criminal offence often remain much more prominent on the Internet than news about their acquittal. If the acquittal makes it to the news press in the first place. Should the innocent person accept this then?

Messages in the newspapers about an unjustified suspicion of criminal offences can get in the way of a former suspect. All parties you deal with in daily life can find this information with a simple Internet search: social contacts, Tinder dates, future employer, financial service provider to name a few examples. To be confronted over and over again with false news can feel the same as being punished for the crime that has not been committed.

A Spanish court has recently applied the CNIL doctrine of the Court of Justice of the European Union. CNIL is the French data protection authority. The case concerns a Spanish psychologist who was acquitted of abuse. He continued to be confronted with all the accusing news messages when he was searched for via an online search engine. The first eight results were only articles about the accusations. The news on the acquittal could only be found on the second search page – needless to say that it’s a page which is often overlooked.

The psychologist complained to the National Personal Data Authority. Back in 2017 this authority ordered Google to block the search results, except for the information about the acquittal. However, the Spanish court does not decide so rigorously on appeal: Google is free to show all news items, but the acquittal must be the first result. The “right to be forgotten” is becoming an increasingly sensitive matter in recent years. In fact, the question has always been out there: for how long should information be stored on the Internet?

The awareness of the right to be forgotten led to the possibility of making a request to search engines to have information removed from search results. But that request does not yet guarantee success. The three food for thought questions that arise are the following:

  1. What can you do if the request for deleting information about a suspicion from the past is not granted?
  2. Would making the acquittal being the first search result restore the damaged reputation?
  3. Should media law be part of the aftercare of criminal proceedings that have ended well for the suspect?

Picture: ©Jurepedia/@dianas_office