Civil Fraud Quarterly Round-Up: Q2 2020
A landmark ruling published in January 2019 by Amsterdam’s District Court has allowed a Dutch surgeon’s claim against Google and Dutch data privacy watchdog, Autoriteit Persoonsgegevens, regarding her “right to be forgotten”. The judgement handed down in July 2018 has only been published now, as there was a dispute as to whether it should be made public given the subject matter.
The surgeon had been suspended from the register of healthcare professionals by a disciplinary panel due to her inadequate post-operative care of a patient. Following an appeal, this was commuted to a conditional suspension, permitting her to continue to practise, during the currency of the conditional suspension.
The surgeon won this landmark case, the Court declaring that Google search results containing her name and linking to an unofficial blacklist of doctors must be removed from the search engine’s results.
Google and Autoriteit Persoonsgegevens sought to reject the surgeon’s attempts to have the links to the unofficial blacklist removed, on the grounds that at the time the surgeon remained subject to conditional suspension and the information contained within the link was therefore relevant.
The judge held that the surgeon’s “right to be forgotten” was in relation to information which pertained to her practise in 2014. The implication of her inclusion in the unofficial blacklist was that she was unfit to treat people and this did not accurately reflect the findings of the disciplinary panel on appeal. The judge remarked that the public’s interest in locating information through Google searches (or similar) was to not have the first result be the surgeon’s name on the “blacklist of doctors”.
The right to be forgotten was established in 2014 following the European Court of Justice’s (“ECJ”) ruling in the case of Costeja , in which a Spanish citizen sought to have material relating to his social security debts removed from Google search results. The ruling in Costeja permitted European citizens to request that search engines remove inaccurate, inadequate, irrelevant or excessive content about them from search results.
In the aftermath of Costeja, it is estimated that Google has received approximately 2.4 million requests to “be forgotten” online, concerning information which falls within the categories of inadequate, irrelevant and/or excessive.
The case regarding the Dutch surgeon is considered to be ground breaking in that is believed to be the first of its kind which involved the medical negligence of a doctor where the public interest in the accessibility of the data in question is particularly high.
Following the Dutch ruling in July 2018, it is believed that a further 15 doctors, with minor disciplinary action taken against them, have made applications to be removed from the unofficial blacklist, half of which have been successful.
The Amsterdam District Court’s ruling in favour of the Dutch surgeon may have widened the scope of the “right to be forgotten.” The judge held that although the information contained within the link was accurate, inclusion within the “blacklist of doctors” itself indicated that the surgeon was unfit to practise as a doctor. Furthermore, comments left on the site suggested that the doctor was unfit to practise and should not be treating patients.
This begs the questions whether the outcome would have been the same if the link in question was not to an unofficial blacklist, but contained on an official register, or main stream data source.
It can be considered unjust to seek to rewrite the past and may be viewed as a misrepresentation for professionals to have the ability to remove information regarding their past professional disciplinary proceedings or fitness to practise history removed from the public domain.
It can be argued that employing the right to be forgotten in this manner could undermine the protection of the public, as patients, customers or service users may feel that the professionals that they are engaging with have misrepresented their position and professional history.
A balance must be struck between data protection, privacy and the emerging right to be forgotten that the professional is entitled to and the legitimate public interest of the information remaining accessible to the public.
In the case of the surgeon, the judge held that the information on the unofficial blacklist called into question her fitness to practise which had already been disposed of and settled within the appropriate jurisdiction of a professional disciplinary proceeding. The ruling therefore addresses the imbalance that the surgeon’s fitness to perform her profession was not judged by the results of a Google search, which was likened to a “digital pillory”.
The removal of information potentially misrepresenting professionals’ positions, as in the case of the unofficial blacklist, introduces an element of quality control in the data available. Meanwhile, information regarding the surgeon’s disciplinary history remains publically available on the website of BIG register, the Dutch medical regulator, where there is assurance that it is accurate and appropriately presented to the public.
The ruling may have a significant impact throughout the European Union where professionals will seek to remove historic information about their antecedents from instantly accessible search engines, regardless of the accuracy of the information.
Julie Norris is a partner in the Regulatory Team. She specialises in advising in the health, professional services, legal and financial fields, advising professionals, businesses and regulators on regulatory compliance, investigations, adjudication, enforcement and prosecutions. Laura Penman is a trainee solicitor in the Regulatory Team.
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