February 12, 2019

The “right to be forgotten” – a new development for healthcare professionals?

The so-called 'right to be forgotten', where an individual can apply to have information about them removed from internet search results, has been around since 2014. As of May 2018 the position has been strengthened and extended via the new provisions of the GDPR.  A court in the Netherlands recently considered an application by a Dutch surgeon, with the doctor winning the right to tell Google to remove links to her name.

Legal background

The basis of any request for removal of information from a search engine was established in a 2014 ruling by the ECJ, who decided that EU citizens could apply to search engine providers (in this case Google) to remove information which was 'inaccurate, inadequate, irrelevant or excessive', in the opinion of the search engine company.  The case was brought by Mr Mario Costeja Gonzalez who had asked Google to remove information about his financial history.

However, the right to be forgotten is not an unqualified one and in the context of healthcare professionals who have been subject to fitness to practice proceedings before their regulator, the expectation has been that any attempt to invoke the right would be unsuccessful.  Given that the primary function of healthcare regulatory bodies to protect the public, arguably this function is undermined if the public doesn't have access to information about a clinician's fitness to practise history.  For the clinician, on the other hand, the reputational consequences of an adverse fitness to practise decision or even simply an allegation or complaint which ultimately proves to be unfounded, can be devastating both professionally and personally particularly when an allegation gives rise to a news report which is then immortalised in the clinician's search results (an allegation always seems to be much more newsworthy than the response).

Netherlands judgment

Recently, however, a court in the Netherlands took the very unusual step of deciding in favour of a surgeon who applied for removal of Google search results concerning her disciplinary proceedings by the Dutch medical regulatory authority, who investigated her for poor post-operative care of a patient.  Her registration was initially suspended, but she appealed and the sanction was amended to the equivalent of an Order for Conditions. 

The availability of this information would, in any jurisdiction, be likely to be entirely uncontroversial, although no doubt uncomfortable for the doctor involved.  However, in this case her proceedings had drawn the attention of a website which contained an unofficial 'blacklist' of doctors whose fitness to practice had been called into question.  This website became the first result on any Google search of the doctor's name and, perhaps unsurprisingly, the matter came to be discussed on web forums by potential patients.  This, it was argued, amounted to 'digital pillory' and outweighed any public interest in transparency relating to her sanction.

The court agreed with this.  They decided that the surgeon's interest in not having her name so prominently linked with criticisms of her fitness to practise outweighed the public interest in being able to find out information about her in this particular way. 

In this present case, significantly, both Google and the Dutch information commissioner argued that the information was adequate and relevant but, for the first time in a case involving medical negligence, the court disagreed. Although the information about the case was accurate on the website in question, the name of the blacklist itself carried an implication that any doctor on it was unfit to treat patients, which did not reflect the findings of the disciplinary panel.   Even though the doctor was still within the term of her regulatory sanction, the information on the blacklisting website was deemed not to have sufficient relevance to warrant its continued inclusion in the Google search results.  The fact of her disciplinary sanction would, importantly, still be available via the health regulator's public list.

Conclusion

Given that this was a decision of a Dutch district court, it will of course not be binding in this jurisdiction, and in any event was quite unusual on its facts.  Every such decision will be fact-specific, and this is certainly not suggestive of any move to make information about fitness to practise sanctions unavailable, but it does perhaps represent a more flexible approach to whose rights are paramount. 

As an interesting (and cautionary) footnote, and perhaps a clear example of unintended consequences, following his landmark David and Goliath victory against Google in 2014, the following year Mr Costeja was denied the right to suppress links to comments about that case by the Spanish Data Protection Authority who concluded that given the relevance of the ECJ’s ruling, the resulting comments discussing the case, and of course the facts and background behind it, must be considered relevant to the public interest. In an attempt to limit the information it was consequently publicised more widely.

It remains to be seen, following the decision in the Netherlands, whether courts in this jurisdiction will follow suit. But beware those unintended consequences.