Monthly Archives: June 2011

What is the current legal status of Europe’s “right to be forgotten” doctrine as it relates to Internet Defamation?

A Spanish court recently asked Internet-search provider Google to remove data about a private individual from its index.  Spain and other members of the European Union made this request under a doctrine that is commonly referred to in Europe as “the right to be forgotten.”

In 1991, a Spanish newspaper published a critical profile of Spanish plastic surgeon, Dr. Hugo Guidotti Russo.  The article referenced a dispute Dr. Russo had with a patient, but failed to mention how meritorious the claims were or how the dispute was ultimately resolved.  According to Dr. Russo’s attorney, the lawsuit was dropped once Dr. Russo was cleared, but no media covered that aspect of the case so it never appeared on the Internet.  Dr. Russo is still a practicing plastic surgeon in Spain and when potential patients use Google to search for him, the critical article regularly appears on page one of the search results.  Dr. Russo believed that the article was harming his ability to attract patients and, with the support of a Spanish court and the Spanish Data Protection Authority (“SDPA”), asked Google to remove the article from its index.

Google refused to remove the article claiming that the Spanish regulators exceeded their authority and that their directive was equivalent to censorship.  The important issue raised was how much control private individuals should have over the information about them that appears on the Internet.  Currently, there is a groundswell of support in Europe for the “right to be forgotten” movement such that it may be codified as law.  The SDPA has previously ruled that freedom-of-expression laws in Spain protect only newspapers and other publications and do not protect search engines.

Other examples of private individuals seeking to “be forgotten” in Spain include:

A high school principal whose citation for urinating in public was published by an official regional government gazette and may still be seen by students and parents alike via a Google search.

A prison guard concerned that a job-related sanction that appeared in Google search results might lead criminals to determine where he works.  Spanish police and prison guards are often granted anonymity due to fears that they might be identified, located, and targeted by the armed Basque separatist group ETA.

An individual accused of homicide forty years prior but acquitted due to mental illness.  A Google search performed forty years later reveals news of the accusation, but no news of his acquittal or the mental illness that justified the acquittal.

Google’s response is that Spain should require the publications that make the material available via the Internet to embed coding that would tell search engines not to index the information.  Privacy experts agree that requiring Google to remove information from its index could have a profound chilling effect on free expression.  Advocates of the “right to be forgotten” rules counter that users of the Internet should have a right to be forgotten when the data is no longer needed or when an affected individual requests that the data be removed.  The legislation being considered by the European Union would focus mainly on data, photos and, videos that individuals post of themselves on sites such as Facebook and Twitter, that the individuals may later want removed.

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC

May statements made in the course of an ongoing fraud investigation be defamatory?

On April 7, 2011, the First Department of New York’s Appellate Division upheld a trial court’s dismissal of a lawsuit for defamation.  Akpinar v. Moran, 2011 WL 1311902 (1st Dept. 2011).  The plaintiff, Reverend Dr. Bill Akpinar, sued attorney William Moran; Moran’s law firm; and the firm’s client, Wachovia Mortgage, FSB (“Wachovia”) for defamation.  Akpinar alleged that Moran defamed him in a newspaper article about a pending criminal investigation into a mortgage fraud and a lawsuit brought against Akpinar by Wachovia alleging mortgage fraud.

When referring to Akpinar, Moran told the newspaper, “I’m looking forward to getting him under oath” and “I want to get to the bottom of many questions myself.”  Id.  Akpinar argued that when considered in the context under which the statements were made, they amounted to defamation.  Akpinar claimed “that he lost $17 million in venture funding from unspecified individuals who read the [defamatory] statements.”  Id.

The Appellate Division dismissed Akpinar’s complaint, holding that “a reasonable reader would understand the statements defendant made about plaintiff as mere allegations to be investigated rather than as facts.”  Id.  (Emphasis in original).  The court reasoned that “the statements neither impute to him the commission of a serious crime nor tend to injure him in his trade, occupation or profession, and therefore do not constitute slander per se.”  Id.  Neither Akpinar’s reference to the pending criminal investigation nor the civil lawsuit were sufficient to establish a claim for “defamation by innuendo” – whether the statements are defamatory requires a balancing between the alleged defamatory words and the facts and circumstances that surround their publication.

The court also found Akpinar’s allegation that he lost “$17 million in venture funding from unspecified individuals” inadequate to plead special damages as required in a defamation action.  Id.  Finally, the court noted that Moran’s statements were protected under Civil Rights Law §74 as a “fair and true report of a judicial proceeding.”  Id.  The court similarly dismissed Akpinar’s claim for intentional infliction of emotional distress as duplicative of his defamation claim and on the ground that Moran’s statements were “not so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.”  Id.  Thus, the court upheld the decision of the trial court dismissing Akpinar’s lawsuit in its entirety.

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC