Second Circuit Rejects Claim that State Erasure Statute Creates Right to be Forgotten

March 6, 2015

The emergence of the Internet and the wealth of available data on it, coupled with search engines that allow persons to find out almost anything published about a person's past, have given rise to a significant debate. Does a time come when information becomes so old and possibly irrelevant that a person has a right to restrict its availability – commonly referred to as the Right to be Forgotten?

Though such a right has been recognized in the European Union, it has made no headway in the United States, based on free speech First Amendment concerns and policy arguments against rewriting history. Although governmental entities may choose to "erase" information they have through arrest expungement and similar statutes, private actors have not been so limited.

Recently, the Second Circuit Court of Appeals held in Martin v. Hearst Corp., No. 13-3315, — F.3d — (2d Cir. Jan. 28, 2015), that newspapers and other publishers cannot be civilly liable for publishing (and continuing to make available online) accurate articles detailing an individual's arrest and criminal charges, even where the arrest and charges are dismissed and the arrest records and charging documents are erased. In reaffirming the principle that one does not have a right to be forgotten, the Court rejected arguments that the news media has an obligation to pull these articles from viewing or, alternatively, to update these articles with information that the arrest and charges were dismissed.

The Alleged Drug Ring

In 2010, Lorraine Martin and her two sons were arrested and charged with drug-related offenses after police searched her house and found marijuana and drug paraphernalia. Several local newspapers published online articles that accurately detailed the arrests and charges.

In 2012, however, the State decided not to pursue its case against Martin, instead entering a nolle prosequi. Pursuant to a Connecticut statute, Martin's arrest records were then erased, and she was "no longer considered to have been arrested for the alleged crimes to which the records pertained." Although Martin's arrest records were erased, the news articles of her arrest remained available online.

Newspapers Stand Their Ground

After the newspapers refused Martin's demands that they take the articles down, Martin filed a lawsuit against the newspapers, alleging claims of libel, placing her in a false light before the public, negligent infliction of emotional distress, and invasion of privacy by appropriation. Martin argued that even though she was arrested, once her arrest records were erased, "it became false and defamatory to publish statements regarding that arrest."

No Statutory Right to Be Forgotten

The Second Circuit rejected Martin's arguments, holding that the newspapers could not be held liable for publishing (and continuing to make available online) articles that accurately detailed Martin's arrest and charges. The Court explained that the Connecticut statute "only requires that certain official records be erased" and does not "impose requirements on persons who work outside courts or law enforcement agencies." The Connecticut statute "cannot undo historical facts or convert once-true facts into falsehoods . . . The Moving Finger has written and moved on."

The Court also rejected Martin's claim of defamation by implication, that is, that the newspapers' articles were defamatory because although they were technically true, they told only one side of the story; they did not mention that the criminal case against her was eventually dismissed. The Court reasoned that the articles did not imply any fact about Martin that was not true, and that reasonable readers understand that some people who are arrested are guilty and others are not, and that some people who are arrested will eventually have the charges against them dropped.

First Amendment Bests Privacy Rights

This case and the Court's reasoning exemplifies how an individual's right to be forgotten would be a significant burden on the news media. If such a sweeping right existed as that proposed in this case, news outlets would be required to stay apprised of future developments in all of their stories and would be obligated to either pull their articles or otherwise update them.

There is one area, though, where the First Amendment might bend. Websites exist that post negative information, often mug shots of persons who have been arrested but never charged, while offering to remove such information in exchange for payment of the First Amendment. Many states are considering legislation outlawing such practices.

In today's digital era, this issue remains ripe for litigation. Should publishers and websites be required to forget or rewrite history?

The Media & Communication attorneys at Lewis Rice have developed an in-depth understanding of the unique nature of representing clients in all areas of the ever-changing information business. Our practice focuses on traditional media and new technologies and includes all modes of content delivery.

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