We have previously blogged about the “right to be forgotten,” which has gained a substantial foothold in Europe, and which one nonprofit consumer group has urged the Federal Trade Commission to adopt. While that “right” continues to expand in Europe, the Supreme Court recently denied certiorari and let stand a Second Circuit case that rejected the right to be forgotten.
The lawsuit stems from the 2010 arrest of Lorraine Martin for narcotics charges. Following her arrest, several newspapers published articles, reporting (accurately) that she had been arrested and charged with drug violations. More than a year after Ms. Martin was arrested, the State of Connecticut dropped (or “nolled”) the charges. Under a Connecticut Erasure Statute, which is similar to statutes in other states, Ms. Martin’s arrest records were erased, and she is allowed to report that she has never been arrested.
Ms. Martin thereafter asked several news outlets to remove the accounts of her arrest from their websites. When two news outlets refused to remove the articles, she sued them for libel, false light, negligent infliction of emotional distress and invasion of privacy. In Europe, of course, Ms. Martin could have requested that the links be removed under her right to be forgotten.
Earlier this year, the Second Circuit affirmed dismissal of Ms. Martin’s Complaint on the basis that she failed to state a claim. The court first recognized that the report of an arrest could have far-reaching consequences: “Employers or landlords might, for example, discriminate against prospective employees or tenants who have arrest records without distinguishing those merely arrested from those arrested and subsequently convicted.”
Notwithstanding the foregoing, the Second Circuit held that, because the reports of Ms. Martin’s arrest were accurate at the time of publication, they did not become less accurate or defamatory because of subsequent events, notwithstanding the Erasure Statute:
The statute creates legal fictions, but it does not and cannot undo historical facts or convert once-true facts into falsehoods. . . . [T]he statute does not render historically accurate news accounts of an arrest tortious merely because the defendant is later deemed as a matter of legal fiction never to have been arrested.
The court also rejected Ms. Martin’s argument that, while the stories about her arrest might have been technically accurate when published, their continued publication – without mentioning that the charges were dropped – constitutes defamation by implication. The court acknowledged that, in certain circumstances, a publication could imply something false and defamatory by strategically juxtaposing or omitting key facts, but held that, because the news reports here were completely true, they are not actionable:
Reporting Martin’s arrest without an update may not be as complete a story as Martin would like, but it implies nothing false about her. Accordingly, we reject Martin’s contention that the reports of her arrest are defamatory because they fail to mention that the case against her was eventually nolled.
While the Second Circuit’s decision does not directly discuss the “right to be forgotten,” that is the “right” Ms. Marin was seeking to enforce. (Ironically, by pursuing the lawsuit, she ran headlong into the Streisand Effect). And Ms. Martin’s case demonstrates why the right to be forgotten is misguided. It attempts to do what Ms. Martin was attempting to do: pretend that history somehow did not happen.