Journalists grapple with online unpublishing and the “right to be forgotten”
By JASMINE BALA
The European Court of Justice’s 2014 ruling on the “right to be forgotten” (RTBF) doesn’t just affect search engines, it also has implications for journalists, said Ryerson University School of Journalism adjunct professor and media lawyer Brian MacLeod Rogers.
In 2014, the court ruled that individuals have the right to ask search engines, such as Google, to remove links with personal information if the details are inaccurate or no longer relevant. Search engines have to make case-by-case assessments of requests under EU law.
The decision, Rogers said in an interview, also had implications for reporters in European newsrooms. Journalists there, he explained, have reason to fear that the right could “impact free expression and the ability of news organizations to publish” and to keep information published as a complete historical record.
The ruling has not yet affected Canadian journalists directly, Rogers said. But, he added: “I think that it certainly focuses on an issue that has been a subject of great concern and debate, and that is unpublishing generally.”
Unpublishing is just one of the potential implications of the RTBF idea that is explored by Rogers and Ryerson University School of Journalism professor Ivor Shapiro in a recent paper published in Digital Journalism. The researchers define unpublishing as “retrospective redaction of error-free news reports.”
The paper, “How the ‘Right to be Forgotten’ Challenges Journalistic Principles,” not only explains the law that now applies in Europe, but also explores how its core ideas might help journalists resolve dilemmas that they face increasingly often.
“We tried to set out some of the legal principles and the ethical principles behind this decision,” Shapiro said, “to make some suggestions to journalists as to how to handle questions of unpublishing and informed consent.”
Although journalists traditionally resist unpublishing, the increased frequency of requests from members of the public for the removal of articles about themselves has journalists reassessing their practices, explains Shapiro and Roger’s report.
Unpublishing requests often come from people who have previously been accused of crimes and want details of these past accusations erased from online history. “Crime reporting is notoriously episodic and often left unfinished in the public record,” the authors observe in their research paper.
“Individuals who’ve been named in those earlier stories are coming up in [Internet searches], and people getting those results don’t see what happened to the charges and the fact that they may have been thrown out,” said Rogers.
Although unpublishing requests aren’t new, they have become much more frequent as web searches become part of daily routine, Rogers and Shapiro wrote. Meanwhile, journalists are slowly changing their practices with the knowledge that the stories they publish will remain on the web—in some form—forever.
Rogers and Shapiro’s paper describes how, in one journalism ethics class co-taught by the two authors, a news reporter said that “he and a colleague had decided to include a video of a criminal act, showing the face of the alleged perpetrator, but decided against including that person’s full name in the written report. Their grounds for doing so: a face on video will not show up in name-based search results.”
If this had been an old-fashioned print story, explained Shapiro, the journalists would probably have just used the alleged perpetrator’s name. “There’s no possible libel case because they have the crime actually captured on video. So from a legal view, it doesn’t matter whether they use his name or not.”
The RTBF issue has also prompted discussions among journalists about informed consent. Just like unpublishing requests, the concept has traditionally been neglected in journalistic practice, the paper says. Today, however, some journalists are doing more to ensure that sources understand how a story’s appearance on the web could potentially harm them.
Journalists who seek informed consent from sources, the authors wrote, show “an attitude of greater consideration toward ordinary citizens” by explaining the long-term implications of publication.
“I’m not saying that every journalist, before talking to a source, needs to get them to sign a waiver indicating their awareness of all the personal consequences of an interview,” said Shapiro. “But I am saying that the discussion around consent needs to take into account the nature of the personal harm that can come to the person and the means by which [we ensure] that the person is aware of the personal harm that can result.”
As for the law in Canada, the right to be forgotten is unlikely to become a fixture here soon, said Rogers—at least not outside Quebec.
Europe has a long-established legal framework for protecting privacy, Rogers explained, as does Quebec. Litigation in this area is governed not by judge-made common law, but by a civil code and a Charter of Human Rights and Freedoms which, like the European human-rights convention, explicitly includes the right to privacy and the right to reputation. “And I think that there is, to some extent, a different sensibility about privacy and certainly different judicial reasoning around the issue of privacy,” Rogers said.
In common-law Canada, he added, civil rights complaints fall under provincial jurisdiction, so introducing a right to privacy would require the federal government to work with the provinces.