The Right to Be Forgotten vs the Streisand Effect
It has always been a challenge in suing someone for defamation that the lawsuit may draw more attention to the defamation than it had previously obtained. A fortiori in cyberspace… This seems to have happened (again) recently in France, where a restaurant’s suit against a critic whose negative review featured high in Google’s search results about the restaurant has now replaced the review in the rankings… “In typical Internet style, Google searches for the restaurant now prominently feature articles about it suing [the author].“
The exercise of a right to be forgotten in Europe under the CJEU’s ruling on the point has the advantage to the defamed person that the nasty links can be suppressed from search results privately, by application to the search engines, rather than in a public court battle. Making such applications is described as a ‘new service industry’.
Would the fact of suing for defamation (or of being defamed) be sufficiently a matter of public interest that one would not have the right to have that fact ‘forgotten’ by the search engines? Would one have to wait for some years for the dust to settle (if not the suit itself) before any such ‘right’ could be exercised?
It has been suggested to me that the CJEU’s decision does not itself refer to any ‘right to be forgotten’, and it required only that the name of the applicant be removed from the search results, and not the entire link to the original online newspaper articles – so if one were searching by other details than the name of the applicant, the articles would still show up in the search.
I understand the desire to limit interference with access to information, but does this make sense as a matter of privacy law (which was what was being interpreted in the CJEU’s decision)? If that law applies to personally identifiable information, i.e. information that is capable of being linked to an individual, then producing the story by a search of the details is not much more respectful of privacy than a search of the person’s name directly. That’s particularly true when the name is in the stories that one finds by the search…
This ruling in Europe has apparently caused Google to spend quite a fair bit of money and time – from hiring lawyers to analysts, to handle the overwhelming requests ‘to be forgotten’. I do agree that certain lawsuits may cause more visibility on certain negative reviews. However, the context of seeing a negative review that are being attempted to be removed may not have the same negative impact as actually reading a negative review otherwise. For example, as a potential restaurant customer, if I see a lawsuit for a poor reivew, my initial thoughts would be that the poor review does not accurately represent the restaurant – essentially why it is being removed.
One argument for defamation law with a bite is that it makes publishers more credible. ‘They wouldn’t say that if it weren’t true, because they’d get sued.’ It is arguable that the Internet is less worth believing because there are no consequences for lying (though sites that allow people to establish a reputation – good or bad – can help.)
If I saw a restaurant suing a reviewer rather than responding to criticisms on the merits in the same forum, I might be inclined to wonder if the restaurant had something to hide. More reputable review sites all0w the person reviewed to respond – but of course who is believed can’t be legislated.
No – in smaller markets, like Canada, it may make publishers more timid, and less likely to stick their necks out because the economic consequences of straying too close to the line are so serious. I can’t tell you how many authors are dispirited when their sources won’t testify and defending a suit is so expensive.
Exhibit One is Reichmann v. Toronto Life, which you’ll search in vain on Canlii to find any more than the initial procedural skirmishing, because counsel for Reichmann motioned the defendants to death and burned through the insurance coverage.
One helpful development is the responsible journalism defence, established in by the Supreme Court of Canada in Quan v. Cusson and Grant v. Torstar, which The Walrus has described as being integral to the exposure of Rob Ford.
Interesting stuff, this.
According to a recent New York Times article, over 70,000 requests for delisting have been submitted to Google, many or most through Google’s new online form for such requests. Companies or law firms dealing with reputation management see this as a new tool. But it looks as though much of this “expertise” about how companies can convince Google to delist… well it’s selling smoke.
No one has any real idea how an arbiter of these requests thinks, or what the test is (other than vaguely a balance of privacy and public interest). Google has no clear parameters as to what is in the “public interest”… and there is something grimly amusing about the guardian of the “public interest” and “privacy” being a large corporation whose own interests do not really put it out of conflict.
Seems most submissions are failing to hit the mark so far.
Search results change depending on the region of the searching user, so does anyone know whether search results are affected within the EU or even a specific state only?