Right to be forgotten medical profession
Our client was a successful, highly promising brain surgeon. A snapshot of evidence he gave a coroner inquiry was published in a national newspaper and had caused huge damage to his reputation. He needed the article removed from Google or deleted from the newspaper.
Professional people, particularly doctors, are particularly susceptible to personal attacks on the internet. One classic example where a doctor might need to make an application under a Right to be Forgotten is where a patient convinced him or herself that they have a valid complaint against their doctor.
After making a formal complaint to the medical practice or to the British Medical Association (BMA) and after the doctor is cleared of any wrongdoing, the patient decides to “name and shame” their doctor, because the patient is unwilling to accept the findings that their doctor acted appropriately. They go online and post one or two negative reviews about the doctor, naming him or her.
Under a Right to be Forgotten, Google is likely to first refuse to remove those reviews despite their falsity. The reason for this is that a Right to be Forgotten includes an exception which applies to one’s professional life. In other words, there is a presumption that if a review relates to a doctor, the Right to be Forgotten does not apply. However, online reviews about doctors which mention the name of the doctor might have a serious impact on the doctor’s own right to privacy.
Yes. There are situations where it would be possible to have true information about a doctor removed by Google. The example below is based on a real case, but the facts have been changed to avoid any possibility of our client being identified.
Our client, R was a Neurologist. Two years earlier he saw a patient and diagnosed her with what he believed at the time was the most likely medical condition. The patient’s condition subsequently deteriorated and eventually she died. The matter was referred to the coroner, as would be customary under the circumstances.
During the coroner’s hearing, a member of the patient’s family alleged that the doctor’s initial misdiagnoses was the cause of the death. This of course was untrue and the coroner had made no adverse findings against R. Unfortunately for R, a reporter who sat at the coroner’s court when the allegations were made against R by the family, had reported the allegations in a local newspaper and on the internet.
The result was that every search for R’s name, together with the word “doctor” or "neurologist" it brought up the damaging newspaper article, which repeated the member of the family’s claim that R had caused the death of his patient by misdiagnosing her. From a newspaper point of view, their report was true because it simply repeated something that was said during legal proceedings. The newspaper had no regard to the fact that the claims made in coroner court were false. This had caused Dr R serious damage, to his reputation, to his professional career and to his well-being.
Dr. R approached the newspaper and requested for the article to be removed from their website. The editor politely declined, so Dr. R made a right to be forgotten request to Google to have the news article delisted from Google search results. Google refused the request because it said the news report related to Dr. R’s professional life and that it was in the public interest to have it found in searches for Dr. R’s name.
Unfortunately for Dr. R, he had waited for nearly 2 years before he sought legal advice. During this time, his career suffered and he started to suffer from stress.
To start helping him, we decided to make a fresh right to be forgotten submission to Google which was first declined. We expected this. We then prepared a detailed legal submission to Google’s legal department under s10 of the Data Protection Act (now a similar submission would be made under GDPR right to be forgotten procedure).
Our legal submission convinced Google to delist the news article about Dr. R, just over two years after it was first published.
It is difficult for any professional person to see his career being ruined for no good reason. Often doctors, nurses and medics suffer silently for too long before they finally seek professional legal advice. Sometimes it is because they feel too embarrassed to discuss professional matters, whilst in most cases it is because they simply choose to ignore the painful issue by engaging more than ever with their work.
I have seen other cases where doctors sought and received advice from trade union lawyers and legal advisers. In most cases the legal advice was basic and not based on practical experience or specialist knowledge, which is a shame for the doctors concerned who sadly, suffered needlessly for far too long.