Doctor’s right to be forgotten

27 January 2019 by

ECLI:NL:RBAMS: 2018:8606, Rechtbank Amsterdam, C/13/636885 / HA RK 17-301 – read judgment

An Amsterdam court has ruled that Google should bring down an unofficial “blacklist” of doctors maintained by a discussion group on the internet. This is said to be the first right to be forgotten case involving medical negligence by a doctor.

The judgment – available only in Dutch and heavily redacted – was handed down in July last year. But publication was delayed due to disputes over whether publication would compromise the anonymity not only of the claimant but of the other fifteen doctors on the blacklist. The claimant’s lawyer, reported in The Guardian, predicted that Google will “have to bring down thousands of pages” as a result of this ruling:

There is a medical disciplinary panel but Google has been the judge until now.

Background facts

The claimant was a surgeon who had been suspended by a disciplinary panel because of her postoperative care of a patient. This was changed to a conditional suspension after she appealed and she was allowed to continue practising.

But she discovered that members of the public, by entering her name in Google, were brought to a website containing an unofficial website discussing her (and other doctors) on an unofficial “blacklist” for potential patients.

Arguments before the Court

It was not disputed that Google’s search engine, which consists of finding or storing information published or stored by third parties on the internet, makes Google a “controller” for the processing of personal data within the meaning of the Privacy Directive 95/46 / EC. Therefore the company had to abide by the provisions of this directive and the General Data Protection Regulation (the “AVG”).

The claimant relied upon the provision in the AVG which makes the processing of criminal convictions the exclusive preserve of the government. The court rejected this argument, accepting Google’s contention that data within professional disciplinary proceedings are not categorised as “special or criminal personal data”.

The Court referred to an earlier ruling by the Supreme Court of the Netherlands in X v Google which said that

the fundamental rights of a natural person as referred to in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (the right to respect for private life and the right to the protection of personal data) as a rule outweigh, and thus take precedence over, the economic interest of the operator of the search engine and the legitimate interest of Internet users who may be able to access the relevant search results.

….In this light, the possibility exists that the operator of a search engine is obliged to ensure that certain results do not appear in a list of search results, namely if they are factually incorrect or, […] are incomplete or irrelevant or excessive for the purposes of the processing, because they have not been updated, or because they have been kept for longer than is necessary, or if there are compelling and justified reasons relating to the personal situation of the applicant that prevent data concerning him from being the object of processing. This obligation may also exist [even] if the publications are lawful per se.

In this case, the information about the claimant was factually correct in that she had been involved in disciplinary proceedings and temporarily suspended from practice. But the Court accepted that the legislator had laid down a sophisticated legal system to make known to professionals those subject to conditional disciplinary measures. According to the relevant legislation, every disciplinary measure is published in the the register (www.bigregister.nl), with a very limited indication of the reason for the imposition. The claimant argued that the authorities had not considered it necessary to suspend her permanently and to close her practice and it was therefore not plausible that potential patients – the ‘public’ – were exposed to any particular risk if they attended her practice.

In these circumstances it was not permissible to draw up a black list which included personal data.

Although the legality or otherwise of the ‘black list of doctors’ is not the subject of these proceedings – and the court cannot assess these in the absence of information – in the light of the provisions of the [Privacy Law] question marks are placed on the legality of that list.

… Furthermore, the ‘black list of doctors’, as [the claimant] rightly argued, is not representative and therefore not a reliable source of information, because only the names of a fairly random part of the care providers on whom disciplinary measures have been imposed are ‘black list doctors’

Whilst the claimant could, to some extent, be regarded as a public figure, this was not dispositive of the case. “After all”, the court said,

she has already accounted for this action to the disciplinary judge

Even the relatively narrow publication of professional disciplinary proceedings has a chilling effect. The claimant put before the court various publications of the Netherlands medical federation which indicated that the publication of a disciplinary measure in the official register – called ‘naming and shaming’, or ‘digital pillory’ – has such a powerful influence on doctors, both personally and professionally, that more than half of them have considered stopping work.

The Court’s ruling

In the light of the above, the Amsterdam District Court ordered Google to remove the link.

Google’s policy in such cases is to

  1. ensure that the relevant search results are no longer displayed to users searching from the Netherlands, regardless of which version of Google Search is used;
  2. remove the search results from all EU / EFTA versions of Google Search (like Google.be, Google.fr etc. besides Google.com).

As the claimant’s lawyer said,

The disciplinary committee is not meant to be about punishment. It is meant to be correcting the doctor’s mistake so they can do the job next time.

In 2014 the Court of Justice of the European Union established the “right to be forgotten” relating to a Spanish citizen’s claim against material about him found on Google searches. See Case C-131/12: Google Spain SL & Google Inc. v Agencia Española de Protección de Datos (AEPD) & Mario Costeja González. Deciding not to follow the AG’s opinion (which I discussed in a 2013 post) the Court ruled that under Directive 95/46/EC

even initially lawful processing of accurate data may, in the course of time, become incompatible with the directive where those data are no longer necessary in the light of the purposes for which they were collected or processed. That is so in particular where they appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: