The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Actor exonerated of sexual assault now tries to vanish articles about accusation—and about exoneration
I recently ran across another interesting Google deindexing attempt, which bears on interesting debates about the right to be forgotten, media ethics and the like. I thought I'd mention it to see what people's reactions might be.
John Smith (a pseudonym I'm using here, for reasons I'll explain at the end of the post) is a TV and film actor—not particularly well-known, though he's had small parts in various shows and a modest-size part in a fairly prominent soap opera. He has also worked as a bodyguard to an A-list actor.
In 2013, Smith was indicted for sexual assault, but some months later he was apparently exonerated. Here's what the prosecutor wrote about this:
Following presentation to the Grand Jury, materials tending to impeach the victim's credibility were received. [The alleged victim] was confronted on these inconsistences and became defensive with [the prosecutors and the investigator]….
In light of [a] pending motion [alleging prosecutorial misconduct], the matter was resubmitted to the Grand Jury …. The Grand Jury heard from the victim and she was confronted about the inconsistencies in her testimony. The Grand Jury heard from [a Sergeant] from the Secaucus Police Department. The Sergeant read the victim's original statement and testified concerning the investigation….
The Grand Jury deliberated and delivered a no cause after hearing the evidence.
On the strength of this exoneration, Smith also got his arrest record expunged, which essentially means that, as far as the New Jersey government goes, it's (more or less) as if he had not been arrested and indicted. The expungement order does not purport to control what others say about him (and I don't think it could).
Just a few weeks ago, someone (using Smith's name) asked Google to remove from its indexes several stories: two from general-interest publications—the Daily Mail (UK) and pix11.com, the site of a New York TV station—and five from celebrity news sites. Three of these articles (including the Daily Mail piece) were about the original allegations; four (including the pix11 story) were about the exoneration, though of course they necessarily mentioned the original allegation. If Google had agreed to deindex the stories, they would have been hidden from Google searchers. Right now, one of the exoneration stories appears in the top 10 Google search results when I search for Smith's real name, and some others appear on further Google pages; a Google News search for Smith's real name reveals even more of the stories.
Now as best as I can tell, this attempt was doomed: To my knowledge, Google doesn't deindex news stories based on expungements or on statements of exoneration. It sometimes deindexes items (usually not professional news stories) when there is a finding that they are false and defamatory, but here there was no such finding.
Indeed, the stories are apparently accurate accounts of the publicly released factual allegations. Some might fault the stories about the original accusation for not having been updated to reflect the exoneration, at least if the authors of those stories had been alerted to the exoneration. (It's not clear whether they were.) But the stories about the exoneration can't be faulted on those grounds, since they mention the exoneration—though of course we'd all prefer to never have been accused than to be accused and then exonerated.
So my questions (and these are just to start with): What should our view be when someone tries to get the stories about them to vanish from search results this way? Should it matter that there is real evidence that he was innocent? (My sense is that the grand jury's decision to essentially withdraw the indictment is such evidence.) Should we view attempts to vanish the exoneration stories differently from attemps to vanish stories about the accusation that hadn't been updated to reflect the exoneration?
Should it matter that Smith is a relatively small-time actor and not a political figure or political activist? On the other hand, given that he aspires to be a more prominent actor whose success will turn on the connection he develops with his fans, is there something bad about him trying to block his fans from finding these stories about him?
Is there a difference between trying to get Google to deindex stories this way and instead approaching each individual publication and asking it to remove the story? Or, is all perfectly fair here—the original stories, his attempt to get them deindexed, Google's likely refusing to deindex them, my covering the attempt and so on—because there was apparently no fraud on Smith's part, the authors' part, Google's part or my part? (Contrast this with some of the other deindexing stories that I've covered, which sometimes do involve apparent fraud.)
As you might gather, I do think there's a difference between this case and the Hart Noecker case, which I blogged about yesterday—I mentioned Noecker's real name, but not Smith's real name. Readers can figure out the real name from the documents I link to, but this way a Google search for the real name won't find this article (unless Google is even craftier than I expect).
My tentative sense is that it makes a difference that Smith seems to have been exonerated through a process that is usually not very friendly to criminal defendants (the grand jury); Noecker simply got a default judgment when suing his accuser, who didn't appear to defend herself, and I don't think that such default judgments are particularly reliable. (Though the default judgment order stated that, "having heard the evidence submitted during the prima facie hearing [by Noecker], the court [has found] that defendant defamed plaintiff by making false allegations of sexual assault," I don't think that a default judgment proceeding based on just on the plaintiff's evidence—even when the defendant has declined to appear—is an especially accurate gauge of the facts.) But I might well be mistaken in this.
In any event, I'd love to hear what people think about the subject. (Note that this doesn't involve a libel lawsuit, unlike in the other posts that I've put in the libel takedown litigation category, but I included this post in that category because I thought readers who find those posts interesting will be interested in this one as well.)
