While EU national judges order de-indexing of links to articles relating to past criminal convictions, the Second Circuit U.S. Court of Appeals held, in a January 2015 decision (Martin v. Hearst Corporation[1]), that the beneficiary of a nolle prosequi may not obtain the deletion of accurate news reports of her arrest, affirming the primacy of news organizations’ First Amendment right over individuals’ right to privacy.   

On January 28, 2015, the U.S. Court of Appeals for the Second Circuit affirmed an August 2013 judgment of the U.S. District Court for the District of Connecticut granting summary judgment for the defendants, after the plaintiff brought an action alleging libel and other publication-related claims against news organizations that refused to delete reports of her arrest in 2010 for drug possession. The plaintiff alleged that although the news reports were true when published, they became false and defamatory when the charges against her were “nolled” pursuant to Connecticut’s Criminal Record Erasure Statute, which provides that “any person who shall have been the subject of such erasure shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath“[2]. However, the judge ruled that “the statute creates legal fictions, but it does not and cannot undo historical facts or convert once-true facts into falsehoods“.

This decision is interesting in light of two decisions recently rendered by Belgian and French courts applying the so-called “right to be forgotten”. In a September 25, 2014 decision, a Belgian judge ordered a newspaper to anonymize a 1994 article relating a DUI accident because the driver has since been rehabilitated[3]. Likewise, in a December 19, 2014 order, a French judge ordered Google Inc. to de-index links to articles first published in 2006 relating to a criminal conviction that is not indicated in the plaintiff’s criminal record excerpt (see here for another blog post on this topic).

Although the facts in Martin are more recent than in the European cases, one can surmise, based on the criteria identified by the WP29 for EU data protection authorities’ review of de-indexing requests, that EU national judges may have reached a different outcome in the Martin case. Indeed, a nolle prosequi is a “unilateral act by a prosecutor, which ends the pending proceedings without an acquittal and without placing the defendant in jeopardy“[4]. This means that, unlike the EU cases, Martin was never convicted after her arrest, which may be seen as a compelling fact in favor of the application of the right to be forgotten.

These decisions are a perfect illustration of the Google Advisory Council’s argument that applying the right to be forgotten worldwide, as requested by the WP29, may contradict solutions espoused by courts in other parts of the world (see here for another blog post on this topic). It is however too early to conclude that the U.S. and European approaches may never be reconciled. As a matter of fact, some U.S. courts have already admitted in the past that although relating old crimes is an exercise of free speech, there are situations where identifying persons by their names may be unnecessary and not newsworthy, and may inhibit their right to obtain rehabilitation into society[5]. Although these decisions date to several decades ago, they nevertheless show that a common ground may certainly be found, as suggested by Judge J. Peters in Briscoe v. Reader’s Digest Association, Inc.[6]: “[T]he rights guaranteed by the First Amendment do not require total abrogation of the right to privacy. The goals sought by each may be achieved with a minimum of intrusion upon the other“.