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.

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