Intended for healthcare professionals

Feature Online Reputations

Google, doctors, and the “right to be forgotten”

BMJ 2015; 350 doi: https://doi.org/10.1136/bmj.h27 (Published 06 January 2015) Cite this as: BMJ 2015;350:h27
  1. David Payne, digital editor and reader editor, The BMJ
  1. dpayne{at}bmj.com

Doctors and other individuals have legal rights to be “forgotten” online in Europe. As search engines act on the first requests, David Payne examines the implications so far for the medical profession

The personal details of a UK doctor whose “botched procedure” attracted media attention are among thousands of urls1 removed from Google search results after the European Court of Justice (ECJ) ruled that individuals have “the right to be forgotten.”

The ECJ judgment in May 2014 applies to any content that is “inadequate, irrelevant or no longer relevant, or excessive,”2 which, in the case of the doctor, led to the search engine removing links to three pages that contained his details (based on a search of his name) but did not mention the procedure. More than 50 links to reports about the procedure remain.

The judgment was a victory for Spanish businessman Mario Costeja Gonzalez.3 He had complained when a search of his name returned an auction notice of his property in a newspaper. The auction was being held to pay alleged social security debts. Gonzalez had in fact settled the debts, and the auction never took place.

Google (and other search engines such as Microsoft’s Bing and Yahoo)4 applies the ruling only to European versions of its websites, such as google.be or google.fr, but late last year faced calls from an independent advisory European Union working party, set up under article 29 of the Data Protection Directive 95/46/EC, to extend the ruling internationally to its .com domain.5

The call was seized upon by US critics of the ECJ judgment, who described the right to be forgotten as a foreign concept that is anathema to the country’s First Amendment, clashing with a constitutional right to free speech.6

Not surprisingly, Google disagrees with the ECJ ruling but says it respects the court’s authority and is working hard to comply. Its chief legal officer, David Drummond, said in an opinion article published in four European newspapers (including the Guardian) last July “It’s a bit like saying the book can stay in the library, it just cannot be included in the library’s card catalogue.”7

He added: “When it comes to determining what’s in the public interest, we’re taking into account a number of factors.

“These include whether the information relates to a politician, celebrity, or other public figure; if the material comes from a reputable news source, and how recent it is; whether it involves political speech; questions of professional conduct that might be relevant to consumers; the involvement of criminal convictions that are not yet ‘spent’; and if the information is being published by a government. But these will always be difficult and debatable judgments.”

On its transparency report advice page,1 Google says: “When evaluating your request, we will look at whether the results include outdated information about you, as well as whether there’s a public interest in the information—for example, we may decline to remove certain information about financial scams, professional malpractice, criminal convictions, or public conduct of government officials.”

City law firm Brett Wilson provides information about search engine results and the right to be forgotten on its website and advises clients on the merit of a potential request.8

Iain Wilson, a partner at the firm, likens the ECJ judgment to the UK Rehabilitation of Offenders Act, passed in 1974, which introduced the concept of “spent” cautions and non-custodial sentences after a period of time has elapsed.

He said: “The philosophy behind the Rehabilitation of Offenders’ Act is that people should have a right to move on and not have an albatross around their neck if they did something silly when they were younger, such as a drunken prank while at medical school. They should not be held in the stocks forever. It’s about disproportionality.”

Publishers, not surprisingly, see things differently. Martin Clarke, publisher of the UK Daily Mail’s global online offering, MailOnline, echoed Google’s David Drummond by describing the right to be forgotten as “the equivalent of going into libraries and burning books you don’t like.”9

Last month Tim Berners-Lee, founder of the world wide web, told a conference in Paris: “This right to be forgotten—at the moment, it seems to be dangerous. The right to access history is important.”10

Drawing attention

Caroline Fryar, head of advisory services at the UK Medical Defence Union (MDU), reminds its members that the ECJ ruling, though welcome, will not lead to the removal of web pages and documents from the internet, only from Google’s search results in Europe.

She warns: “Users may still be able to navigate to the particular page by using a completely different search term or the same search term entered into a search engine outside the EU. Ultimately, the understandable desire to have a website link erased needs to be balanced against recognition that achieving this may not be the end of the matter and may itself attract comment.”

Fryar’s reference to removals attracting comment is perhaps best illustrated by the policies of UK national newspapers when Google notifies them that links to content have been removed. Currently many use a removal notice as the basis of a follow-up news story. This gives renewed prominence to information that someone wants to be suppressed (Google does not disclose who has asked for results to be removed when it notifies publishers).

The Telegraph did this when Google told the newspaper that it had removed a link to a story about the 2009 trial of Edward Erin, a doctor found guilty of attempting to poison his pregnant mistress so she would miscarry their son. The newspaper also maintains a full list of its content removed from Google search results, and it links to this each time it publishes a new “removal” story.11

Michael Devlin, the MDU’s head of professional standards and liaison, told The BMJ that although its members do get in touch about how to correct erroneous information about them online, only a handful had contacted the organisation specifically about the right to be forgotten judgment since Fryar’s advice was posted on its website in July.

He added: “I think there are two reasons for this. Firstly, doctors have quite wide ranging obligations to report to the GMC and their employer or contractor, and take a broad and pragmatic view about the findings of a conduct committee or representative body being reported in the national or local media.

“Secondly, people tend to get concerned about something prejudicial being published about them in terms of their employability, but medicine tends to provide stable employment. Doctors stay in jobs for a long period of time so therefore they are less concerned.”

Might the “handful” of inquiries to the MDU about the right to be forgotten mean that medical practitioners are instead contacting one of a growing number of companies offering “online reputation management?”12

Devlin doubts it, because the organisation has its own press office who can advise members on the likely media fall-out of their case.

UK justice minister, Simon Hughes, described the burgeoning online reputation management business as “mischievous” when he appeared before the House of Lords Home Affairs Select Committee in July 2014.

The liberal democrat warned that planned EU regulations on the right to be forgotten in the wake of the ECJ judgment would be unenforceable, leading to thousands of misconceived complaints. 13

Were his fears realised? Google has received more than 193 000 requests since May last year, covering almost 704 000 urls and has rejected 60% so far. It has convened a 10 member expert panel to advise on the right to information and the right to privacy, along with a series of meetings across Europe, held between September and November last year.

The panel’s report will include recommendations for particularly difficult removal requests (like criminal convictions); thoughts on the implications of the court’s decision for European internet users, news publishers, search engines, and others; and procedural steps that could improve accountability and transparency for websites and citizens.

But as Drummond said in his newspaper article: “It’s a complex issue, with no easy answers. So a robust debate is both welcome and necessary, as, on this issue at least, no search engine has an instant or perfect answer.”

The BMJ and the right to be forgotten

In November 2014 The BMJ received its first notification of removed links from Google. The search engine notified the journal that is was no longer able to show links to three pieces of online content, including a news story about John Rogers, an honorary consultant at the Royal London Hospital and senior lecturer at Queen Mary and Westfield College of the University of London.

The article, published in 2001, described Rogers’ “unprecedented legal victory” when the General Medical Council agreed to drop a case against him on the grounds that delay in hearing his case until 2002 had breached his right to a fair trial under the Human Rights Act.14

Rogers had faced allegations concerning a procedure for gastric reflux that was part of a research study. He was alleged to have failed to get approval from an ethics committee, to have carried out and invoiced for procedures that were clinically unnecessary and to have published misleading information about success and failure rates.

The second piece of content is a link to 22 responses to a 2005 review of the TV documentary Who Killed My Baby? by paediatrician Harvey Marcovitch.15

The third piece of content is a link to responses to a Patient’s Journey article about systemic lupus erythematosus.16

Google is scant on details when it notifies publishers that links to content have been removed, to protect complainants’ privacy. It cannot disclose which search queries have been affected, and in many cases the queries will not be related to the name of any person mentioned prominently on the page.

But it does ask for any additional information through an online form and says that this extra information “might result in a reversal or other change to this removal action.”

How to submit a claim

Google’s online request form asks for the name that is returning links to “inadequate, irrelevant or no longer relevant” content and a list of urls that the requester would like to be removed.17

It also asks for “a legible copy of a document that verifies your identity (or the identity of the person whom you are authorized to represent),” with a promise to “delete the copy within a month of closing your removal request case except as otherwise required by law.”

If the request gets approved, Google tells website operators: “We are no longer able to show one or more pages from your site in our search results in response to some search queries for names or other personal identifiers. Only results on European versions of Google are affected. No action is required from you.

“These pages have not been blocked entirely from our search results, and will continue to appear for queries other than those specified by individuals in the European data protection law requests we have honored. Unfortunately, due to individual privacy concerns, we are not able to disclose which queries have been affected.”

The company provides a form for website operators to supply “additional information regarding this content that might result in a reversal or other change to this removal action”18

Notes

Cite this as: BMJ 2015;350:h27

Footnotes

  • Competing interests: I have read and understood BMJ policy on declaration of interests and have no relevant interests to declare.

  • Provenance and peer review: Commissioned; not externally peer reviewed.

References

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