Medical Professionals and the 'Right to be Forgotten': Developments Following Landmark Dutch Surgeon Decision

Published 11 March 2019

The reputation of a healthcare professional has always been important. Today, healthcare professionals and providers must take increasing care of their online reputation, given the ease of patients to spread their opinions on the internet.

In this article we look at a recent case which has emerged in the field of medical negligence whereby a Dutch surgeon was successful in a legal action against Google Inc to remove search results relating to a website containing an unofficial 'blacklist of doctors' and which included the surgeon's name.

The 'right to be forgotten'

The principle known as the "right to be forgotten" was established in the landmark case of Google Spain v Agencia Española de Protección de Datos (AEPD) (2014) in which the Court of Justice of the European Union ('CJEU') held that an individual had the right to request that Google would no longer produce search results for information which, whilst accurate, had become "inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes [for which they were originally processed] and the time that had elapsed'.

As of 25 May 2018 the General Data Protection Regulation ('GDPR'), supplemented by the Data Protection Act 2018 in the UK, has significantly extended and codified the basis of the 'right to be forgotten' by introducing the 'right of erasure' under Article 17.

Google Spain and Legal Developments

The Court in Google Spain recognised that data subjects can request delisting of results from Google in accordance with their rights under Articles 7 (private and family life) and 8 (protection of personal data) of the Charter of Fundamental Rights of the EU. It held that these rights would usually override the economic interests of search engines, and the interests of the general public in being able to find the information by searching the data subject's name. The exception to this being where the interests of the general public outweighed the individual's fundamental rights, such as where the data subject played a role in public life.

The recent Dutch ruling

The Court of Amsterdam recently considered the right to be forgotten in relation to a Dutch surgeon. The surgeon's registration on the Dutch register of healthcare professionals was initially suspended by a disciplinary panel because of her postoperative care of a patient. This was changed following appeal to a conditional suspension, under which she was allowed to continue to practise. However, when the surgeon’s name was searched on Google, links appeared to a website which blacklisted health professionals. The surgeon asked the Court to order Google to remove the link.

The District Court of Amsterdam ruled that the surgeon’s right to privacy weighed more heavily than the public interest. Based on the factual background, the Court’s opinion was that the processing of the personal data was ‘irrelevant and excessive’ and required the link to be removed. The Court rejected the argument advanced by Google that removing the link would not affect the information about the surgeon’s actions being available, given that the information was still publicly accessible via the Dutch Medical Register. The Court held that whilst the information on the website with reference to the failings of the doctor in 2014 was correct, the scornful name of the blacklist site suggested she was unfit to treat people, and that was not the case. It was not relevant for a Google Search to produce this information about the surgeon on entry of her name.

Implications for healthcare professionals

The matter, concluded in July 2018, has only now been released and debate ensues as to the effect of this decision on all medical practitioners, in lieu of claims in negligence, disciplinary procedures or revocation of licences to practise.

The judgment does not provide carte blanche for the removal of search results relating to disciplinary or negligence findings. Where a person requests the removal of results, search providers will take account of criteria such as the data subject's role in public life, the nature of the information, its source and its age.

As such, and as in the Dutch case, information that is deemed to be false or makes an inaccurate association with the data subject is likely to be delisted. Conversely, where information relates to public health and consumer protection (e.g. reviews of professional services offered to the public) removal requests are more likely to be refused. More serious matters still (criminal and disciplinary proceedings) would be less likely to be removed, although as that information becomes older there may be less justification for its retention.

Conclusion

While the recent Dutch decision is not binding on courts in England and Wales it does provide a useful weighing of the factors for and against the retention of unpleasant online search results. In some instances the individual's right to be forgotten will outweigh the public interest of retaining the online search results, particularly where the underlying information is available elsewhere from a more professional, less emotive, source.

With leading national lawyers in clinical risk and dedicated data and information law specialists, DACB has extensive experience of advising healthcare providers on reputation management and are on hand to provide advice on this and related issues.