Internet privacy is more relevant than ever. More and more people are having “Google problems.” They usually look like this:
a) someone got arrested; b) the local newspaper wrote about it; c) prosecutors dropped the charges completely; d) the person’s record was expunged (in other words, the slate was wiped clean); but e) the original arrest article, however, is still online.
Now whenever anyone searches that person’s name, the arrest is one of the top Google results even though they’re weren’t guilty.
Google: Your new permanent record
You can imagine the trouble this causes for the individual seeking the article’s takedown: difficulty getting a job, a promotion, or even a date. It seems unfair that even though the judicial system saw fit to remove all traces of the arrest from the person’s record, there’s no corresponding requirement that the local newspaper do the same. What’s the point of expunging a record when anyone with internet access can bring up an old, bogus arrest? Even if a court of law drops the matter, the court of public opinion has condemned that person for life.
The free speech rights of publishers trump those of individuals
In the battle of the newspapers versus the individual’s reputation, the law is on the newspapers’ side. They have a First Amendment right to report true information and are under no legal obligation to remove—“unpublish,” as it’s referred to lately—content, even when significant updates have occurred. In our experience, publishers are generally unwilling to remove articles that were factually accurate when written. Their reasoning ranges from lofty (saying they don’t want to “rewrite the historical record”) to lazy (they have a policy of never changing anything).
Some publications will remove an article, but only if the stars align and several factors exist: the publication doesn’t have a strict policy against unpublishing, we reach an actual human being, we reach an actual human being who’s in a good mood that day, we’re able to provide documentation of the dropped charges or expunged record, and the person to whom we speak decides that the facts of the particular situation warrant removal. It takes hard work, persistence, and luck. Does it happen? Yes, but you can see why it’s pretty rare.
How courts have handled the unpublishing problem
Recognizing the damage that a negative online article can do to someone’s reputation, defense attorneys have requested court orders that newspapers unpublish arrest stories about their clients after they’re found innocent. The few courts that have issued such orders, however, quickly rescinded them in the face of First Amendment challenges. Simply put, you can’t censor a newspaper’s free speech rights to protect your client’s privacy.
The only research that the publishing industry has conducted on this issue shows a lack of uniformity in opinion and response to requests to unpublish. (To read more, check out Kathy English’s report, “The Longtail of news: To unpublish or not to unpublish”). One thing is clear: this issue is only becoming more relevant as the internet replaces print publications. How do the First Amendment rights of publishers stack up against the privacy rights of the accused, and how should courts and the publishing industry treat this balance in the future?
Search engines and content providers, like online newspapers, should recognize their critical role as gatekeepers of information. They should listen to and consider individual situations, even if they’re not obligated to do so. Sure, a 20 year-old article about an arrest may be factually accurate, but is it really fair to leave it up when it’s not newsworthy and makes it impossible for a person to move on in his or her life? Each case is a balancing act, and a quality publication will analyze the pros and cons, not automatically refuse to help.
Dealing with unpublishing requests: fair compromises & solutions
Here are a few compromises and solutions we’d like to see publishers and content providers use more often:
Implement a sunsetting or le droit a l’oubli system
Sunsetting is an automated system used by publishers that retires articles about arrests after a certain preset period. It programs sites to forget, essentially giving content an expiration date. Just like human memory, sunsetting ensures that some things don’t persist forever.
Block the article from being indexed by search engines
Use a robots.txt file to prevent search engines from crawling and indexing the site in search results. The article will stay up on the newspaper’s website, but it won’t be nearly as visible (or as harmful) if it’s not on the search engines.
Remove or anonymize names, especially for lesser crimes
A publisher can maintain the integrity of an article while protecting individual privacy by removing or anonymizing a person’s name (for example, changing it to “Doe”). The publication BloomU Today takes this approach “if the offense is minor and not a felony charge.”
Unpublish the entire article
A rare solution that many publishers consider extreme, removing an entire article may be warranted when it is particularly old, irrelevant, inaccurate, or dangerous to an individual’s privacy or safety.
Add an update or editorial note
Sometimes all an individual wants is an edit at the bottom of an article updating or correcting the unwanted information, and for the most part, publishers are not resistant to do so. This solution, however, has limited practical effect: a reader has to scroll to the bottom to find the edit, and by that point the damage has usually been done. It also has no effect on search results.
We’re optimistic that publishers will adopt these gray-area solutions as we see more and more cases where people’s online identities hold back their real life identities.
Is there something online that haunts you or someone you know? What do you think about search engines and the internet preventing us from wiping our slates clean? Comment below and let us know your thoughts.