Kathryn Leask: The “right to be forgotten” online


A recent landmark court case that ruled in favour of a surgeon’s “right to be forgotten” may be welcome news for doctors, but Kathryn Leask has some caveats

Unhappy patients are increasingly able to use social media and online rating sites to post comments and complaints about doctors and other medical professionals. Some of this feedback can feel unjustified and occasionally it can be abusive, defamatory, or offensive. Any unfavourable mentions of a doctor will still be included in online search results, even if they occurred many years ago, so the impact of this is significant to the medical profession.

A recent Harvard Medical School study of 828 doctors found that 78% of respondents thought the possibility of negative online comments added to the stress of their job and 46% said online rating websites could harm the doctor/patient relationship. Consequently, at the MDU, we have found that our members are becoming increasingly worried about critical comments made online by patients and are contacting us for advice on how to deal with negative comments and their “right to be forgotten.”

The debate around doctors’ right to be forgotten is particularly timely after a Dutch surgeon recently won a landmark court case against Google. The surgeon had been disciplined due to medical negligence, but her initial suspension from the medical register was changed to a conditional suspension after she appealed. The case centred on a Google search of the doctor’s name, which produced links to an unofficial blacklisted doctors website and an online discussion by patients. The district court of Amsterdam ruled that the doctor concerned had “an interest” in not appearing in a “blacklist of doctors” when their name was entered into the search engine. The success of this case may be welcome news for doctors, particularly at a time when social media is so prevalent in our everyday lives and discussion forums are increasingly popular.

The right to be forgotten was established after a ruling by the Court of Justice of the European Union (CJEU) in 2014. This ruling allowed members of the public the right to ask search engine operators to remove results on privacy grounds if they “appear to be inadequate, irrelevant or no longer relevant, or excessive.” The ruling said that a “fair balance should be sought” between the right to privacy and the public interest. Each case, however, would be considered on its own circumstances.

Since the 2014 CJEU case, Google has produced a web form for users or their authorised representatives to request the removal of search results, which, according to Google, has generated thousands of requests.

As part of their evaluation of a request, Google will look at whether the results include outdated information about an applicant’s private life in addition to considering whether there is a public interest in the data remaining in their search results. A public interest may, for example, arise where the information relates to financial scams, professional malpractice, criminal convictions, or the public conduct of a government official. Other major search engines, such as Bing and Yahoo, have also created web forms to request the removal of search results.

However, doctors who decide to submit requests will need to be mindful of the fact that the chances of a successful application will depend on the nature of the request, as well as why it is a cause for concern. It is important to remember that web pages and documents will not be removed from the internet, only the opportunity to access them via a search engine link.

It is also worth noting that the judgment only applies to EU countries, which means it may still be possible to navigate to the particular page by using a completely different search term, or by entering the same search term into a search engine outside the EU. Another disadvantage is the possibility that having a website link erased will not close the matter as one would hope, but may itself attract further comment.

Doctors are generally advised not to respond directly to online criticism due to their duty of confidentiality to patients. Where doctors are concerned about comments made online about them, they should seek advice from the medical defence organisation.

Kathryn Leask has been a medico-legal adviser with the MDU since 2007 and is a team leader, trainer, and mentor in the medical advisory department. Before joining the MDU, she worked in paediatrics, gaining her MRCPCH in 2002, and did her specialty training in clinical genetics.

Competing interests: I have read and understood BMJ policy on declaration of interests and declare the following interests: None.

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