The “Right to Be Forgotten” Online: How Deleting Information Could Affect a Cosmetic Procedure
5 Feb 2015 at 5:00pm
Written by Josh King, Avvo’s Vice President of Business Development and General Counsel
Imagine a woman who’s had a bad experience with a cosmetic procedure. Maybe she posts pictures of the results online in an effort to warn others about the risks or the doctor who caused the damage. Perhaps someone writes a blog post or newspaper article about her unsuccessful procedure as a cautionary tale.
Years go by and the results are corrected by a skilled plastic surgeon. But for the woman who suffered through it, the old wounds remain raw. Why? Because whenever someone searches her name online, these old stories and photos appear. She feels the sting of what she now considers an invasion of privacy.
EU citizens now have the Right to Be ForgottenIn Europe, there’s a solution: People upset by seeing embarrassing, irrelevant, and outdated news about themselves can now petition Google and other search engines to remove these results from their indexes. The posts aren’t actually deleted from the Internet, but because they can’t be located using a search engine, they may as well not exist.
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This so-called “Right to Be Forgotten” was only enacted in mid-2014, but hundreds of thousands of requests have already hit Google, which has struggled to develop methods to implement the European Court of Justice’s directive. Complicating the matter further is the fact that results removed from European sites are still available to anyone searching within the United States. With America offering stronger protection for freedom of speech than many other countries, it’s nearly impossible under U.S. law to censor statements that are factually true, no matter how embarrassing they may be.
Remember the benefits of Internet memoryThis might be troubling to some, but it’s important to remember the role internet memory can play in public safety. According to the BBC, one of the very first takedown requests was made by a convicted child pornographer who wanted articles about his conviction removed from the search results. Another petition, particularly relevant to RealSelfers, came from a doctor who wanted negative reviews from former patients to suddenly disappear.
The desire to limit negative reviews isn’t unheard of; a number of businesses and even individual doctors try to prohibit their customers from writing reviews altogether by using creative customer contracts or burying anti-review rules on their sites. In order to combat this, California has become the first state to put a ban on the use of such blatantly anti-consumer rules. Other states are considering similar legislation, and a bill was recently introduced in Congress that would extend consumer protection nationwide.
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In the world of cosmetic procedures, giving doctors the ability to hide a negative review could obviously put the safety of future patients at risk. That said, while a negative experience can make you want to vent online, it’s also important to understand the difference between opinion and fact. By all means, share your experience as a consumer, but put your focus on providing detailed information rather than hyperbolic statements. Whether positive or negative, playing fast and loose with the facts can be harmful.
Will the Right to Be Forgotten extend worldwide?Some have suggested that search engines should remove pages from their indexes worldwide, but American companies are under no obligation to comply with European legislation within the United States. Because of the 2010 SPEECH Act, foreign speech directives cannot be enforced in the U.S. unless the law in question upholds the United States’ staunch commitment to free expression.
There’s very little chance this legislation will ever take root in America, as it would involve a fundamental change to how we think about free speech. But even if it was to be adopted, being completely “forgotten” is actually much harder than it seems. Invoking the right can trigger the so-called “ Streisand effect,” in which attempting to hide information only results in renewed attention on past indiscretions. In the most prominent recent example, Mario Costeja González, the man who led the charge for the Right to Be Forgotten, wanted to hide his old debts from 1998. He and his debts are now world-famous.
So, what does this lawyer really think?I may be biased, but I much prefer our distinctly American approach to free speech. In fact, we’ve long embraced the idea of more speech versus less. Instead of trying to silence what people have written, we can choose to respond by adding more color, more context, more information. We’ll never truly be able to erase what happened in the past, but we can always choose to communicate and embrace how we’re living in the present.
And for the doctor who gave that woman an undesired result? Well, she can rest assured that (at least in America) her story can help others who may be thinking of following in her footsteps.
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