Reputations take years to build and minutes to destroy

Once upon a time, today’s newspapers were destined to become tomorrow’s fish and chip paper. Not anymore.

Removing information from the public domain has always been a contentious issue, even prior to the web. There’s always been a necessity to balance what details should remain available and accessible.

It’s not too surprising if alleged sex offenders, war criminals or even those simply embarrassed by their lifestyle choices are keen to see information that might reveal their misdemeanours eradicated as soon as possible.

As practitioners, being requested by clients to ‘tidy up their past’ by putting pressure on the media to remove sensitive information, is a considerable greater challenge in the digital world.

Until recently, it looked as if the web was impenetrable to anyone wishing to bring down or remove an article capable of being interpreted as defamatory, whereas in the past, a letter to the publisher of a magazine or newspaper might well ensure that an apology or correction appeared.

Criticised ruling

However, all may not be lost. In 2010, a Spanish citizen, Mr Gonzalez, complained that a Google search result displayed an auction notice of his repossessed home. He claimed an infringement of his privacy rights, as the issue had been resolved many years before.

The conclusion reached by the European Court of Justice is that an individual has a right, under certain circumstances, to request the removal of links that contain personal information about them.

The judgment has led to hefty criticisms, including peers in the House of Lords, who described it as ‘unworkable’. The problem is that incredibly vague parameters are being handled where a person can request the removal of a link, namely ‘if the link contains inadequate, inaccurate, irrelevant or excessive information’. This is likely to lead to case-by-case assessments in the light of the imprecise nature of the ruling.

Conventionally, a practitioner would be wise to contact the URL host directly and request the removal or modification of the information. In the case of media companies, when facing complaints, they may be willing to either modify what has been written or add some words contextualising the comments It is unlikely they will remove an article completely, unless it’s entirely false.<

Now, Google provides a web form for complaints. The search engine’s own published figures, suggest about 53 per cent of 328,000 URLs have been removed on request.

Clearly, individuals are finding a certain amount of success in their web form applications. However, those with a high-profile are being confronted with difficulties and will have a poorer chance of success: it remains fundamental that information belonging to a public figure remains public.

Google ambiguity

In this respect, the case of Max Mosley, the former Fédération Internationale de l’Automobile boss, is a pertinent example as to how a high-profile public figure seeks to have unwanted information removed.

Mosley, who qualified as a barrister, is now a stout privacy campaigner following his victory against the News of the World (NotW) in 2008, in which a judge deemed it false that he had participated in a “sick Nazi orgy”.

Mosley continues in his attempts to airbrush his past and is suing Google for misusing private information and breaching the Data Protection Act for continuing to generate the original photos from the NotW article on its search engine.

He has already been successful with similar claims in French and German courts. Because Google’s URL removal criteria are ambiguous, Mosley may have continued success in removing URL links.

One myth surrounding the ‘right to be forgotten’ ruling is that once the removal request is approved, the information is not eradicated, the link is simply removed.

After a removal request is made on an article on the basis of containing misleading information, Google is simply unable to show it on its search results. The article still exists in its physical format, in the form of a newspaper and article online. Jimmy Wales, cofounder of Wikipedia, described this situation as making “no sense at all." SJ

MODIFYING/REMOVING INFORMATION ONLINE

Jonathan TR Silverman is a founding partner of Silverman Sherliker