Online reputation is becoming more complicated than ever. More and more people are having “Google problems”. They usually look something like:
a) someone got arrested, b) the local newspaper wrote about it, c) prosecutors dropped the charges completely, d) the person’s record was expunged (i.e., the record was wiped clean), but e) the original article is still online.
Now, whenever anyone Googles that person’s name, the arrest is one of the top search results, even though they weren’t guilty!
Google is the new Permanent Record: Your Online Reputation Matters
You can imagine the kind of trouble this can cause for that person. It can make it tough to find a job, housing, or even a date. It seems unfair that even though the judicial system thought it right to remove all traces of arrest from the person’s record, there’s no corresponding requirement for the local news to do the same. Even when a court of law has dropped the matter, the court of public opinion continues to condemn that person. Your online reputation can determine everything
Publishers’ Free Speech Rights are Favored Over Individuals’
In the battle between the newspapers and the individual’s reputation, the law is on the newspapers’ side. They have a First Amendment Right to report true information, and have no obligation to remove or ‘unpublish’ content, even if there have been significant updates. Still, it seems unfair that local news sources usually only publish half of the story when charges are dropped.
And news sources aren’t the only ones posting this kind of content; it has also appeared on sites like Mugshots.com, which indexes recent arrests from around the country and makes them easily available online, accompanied by a mugshot and a description of the arrest.
It seems that publishers are mostly unwilling to remove articles if they were factually accurate at the time of writing. Their rationale ranges from lofty (they don’t want to “rewrite historical record”) to lazy (it’s just policy to never change anything).
Some publications will remove an article, but only under several conditions: they don’t have a strict policy against unpublishing, you are able to actually reach an actual person, that person is willing to help, you can provide documentation of the dropped charge or expunged record, and the person decides that the facts of the particular situation warrant removal. It takes work, persistence, and luck; and even then, it’s pretty rare.
Have courts helped with this?
Because they recognize the damage that a negative online article can have on a person’s reputation, defense attorneys sometimes request court orders for newspapers to unpublish arrest stories after their client was found innocent. The few courts that have issued such orders, however, quickly rescinded them in the face of challenges under the First Amendment. Simply put, you can’t censor a newspaper’s free speech rights to protect an individual’s right to privacy.
The only research that the publishing industry has conducted on this issue shows a lack of uniformity in opinion and response to requests to unpublish. (To read more, check out Kathy English’s report, “The Longtail of news: To unpublish or not to unpublish”.) What is clear is that the issue is becoming more relevant as the internet increasingly replaces print publications. How do the First Amendment rights of publishers stack up against the privacy rights of the accused, and how should courts and the news industry deal with this balance in the future?
Search engines and content providers, like online newspapers, should recognize their critical role as gatekeepers of information. They should listen to and consider individual situations, even if they’re not obligated to do so. Of course a 20 year-old article about an arrest may be ‘factually accurate’, but is it really fair to leave it up when it’s not newsworthy, totally irrelevant, and makes it difficult for a person to move on with his or her life?
Each case is a balancing act, and a quality publication will analyze the pros and cons, not automatically refuse to help.
Dealing with publishing requests: fair compromises and solutions
Here are a few compromises and solutions we’d like to see from content providers:
- Implement a sunsetting or a ‘le droit a l’oubli’ system. Sunsetting is an automated system used by publishers that retires articles about arrests after a certain present period. It essentially gives content an expiration date. Just like human memory, sunsetting ensures that some things don’t stay around forever.
- Block the article from being indexed by search engines. Using a robot.txt file will prevent search engines from crawling and indexing the site in search results. While the article will remain on the newspaper’s website, it won’t be nearly as visible (or as harmful) if it’s not on the search engines.
- Remove or anonymize names, especially for lesser crimes. A publisher can maintain the integrity of an article while protecting the individual’s privacy by removing or anonymizing the person’s name. The publication BloomU Today takes this approach “if the offense is minor and not a felony charge”.
- Unpublish the entire article. A rare solution that many publishers consider extreme, removing an entire article may be warranted when it is particularly, old, irrelevant, or dangerous to an individual’s privacy or safety.
- At least: add an update or editorial note. Sometimes all a person wants is an edit at the bottom of an article updating or correcting the unwanted information. For the most part, publishers are not resistant to add this. Still, this solution has limited practical effect: the reader has to scroll all the way to the bottom to find the edit, and by that time the damage has already been done. It also does not affect search results.
We are optimistic that publishers will adopt these gray-area solutions as increasingly see people’s online reputation being hurt by articles like these.
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