Case Summary and Outcome

The Superior Court of the Commonwealth of Massachusetts granted publishers’ Motion to Dismiss and held that the plaintiff G.W. was not entitled to the Right to be Forgotten (RTBF). The plaintiff wanted an order for the removal of webpages and links to public police blotter reports of his/her arrest for misdemeanors in 2013 which were still posted on the new sites, even though the official records were expunged or sealed. The Court refused to grant an order of removal since the 2013 reports were accurate and truthful, even if incomplete and dated. The Court was “not unsympathetic to plaintiff’s wish to reset the narrative about past events nor was the court unconcerned about the potential collateral damage the old reports could have on plaintiff’s employment, housing or credit prospects”. However, as this was not a defamation case and the defendants were newspaper publishers, according to the judge, the plaintiff’s claim for relief was superseded by the First Amendment of the United States Constitution.

Facts

In 2013 G.W. (“the plaintiff”) was arrested and criminally charged for two misdemeanors but was never prosecuted. Subsequently, G.W. had his criminal records expunged or sealed which meant that the official records were destroyed or inaccessible.  However, these incidents were reported by local newspapers in the police blotter sections and hence were still available online through a simple Google search, which the plaintiff wished to have removed. G.W., using initials to protect identity and privacy, brought the lawsuit against Gannett Co. Inc., an American mass media headquartered in McLean, Virginia, Gatehouse Media Inc., an American publisher of locally based print and digital media doing business as WickedLocal.com  (“the defendants”). The defendants filed the motion to dismiss in the present Court.

Decision Overview

The case was presided over by Justice Rosemary Connolly of the Superior Court of Commonwealth of Massachusetts. The central issue for consideration was whether the plaintiff was entitled to the Right to be Forgotten (RTBF).

The plaintiff contended that two separate police blotter entries in 2013 published in the defendants’ publications identified her/him as having been arrested and criminally charged by two local police departments on two unrelated misdemeanors. The plaintiff stated that s/he was never prosecuted on those charges and those matters were expunged or sealed on plaintiff’s criminal record, however the police blotter reports remained published and easily accessible online. The plaintiff did not dispute the accuracy of those reports at the time they were reported [p. 1]. The defendants requested the Court to dismiss the plaintiff’s complaint and contended that no plausible legal claim had been stated by G.W. for removal of the cyber traces of two truthfully reported articles originally published in 2013.

The plaintiff demanded the removal of the narrative portion of the police blotter in its reports since a simple google search by a prospective employer could uncover this history, and it was a history that was statutorily prohibited from being divulged to that same employer if they requested a Criminal Activity Report (CARL) before making plaintiff an employment offer. As per the plaintiff, “as long as a search engine can find the links to the reports, then an internet search could do an end run around the legislative protections intended for G.W., especially as it relates to his/her sealed and expunged criminal records”. The plaintiff wanted the Court to order the defendants to remove the narrative and links on the webpages with these police blotter reports.

The judge ruled that Rule 12(b)(6) of the Federal Rules of Civil Procedure was not “intended to be a high hurdle impeding a lawsuit at the outset, rather it is a reminder that the plaintiff’s clear plain statement of an entitlement to relief, taken as true, must, in fact, state a recognized claim for relief. But it is at that first gate where plaintiff’s claim stumbles”. The plaintiff wanted an order of removal of webpages and links of a truthful 2013 report derived from public police blotters. Since the 2013 report was accurate, although incomplete, the defendants could not be ordered to be removed at this stage. The Court was “not unsympathetic to plaintiff’s wish to reset the narrative about past events nor was the Court unconcerned about the potential collateral damage the old reports could have on plaintiff’s employment, housing or credit prospects”, however, according to the judge, the plaintiff’s claim for relief should give way to the First Amendment of the United States Constitution [p. 2].

The Court noted that the plaintiff was unable to cite any case or law to support his/her “overbroad, overreaching remedy”.  The defendant, however, relied on numerous cases to demonstrate the legal basis for its motion to dismiss. Citing Yohe v. Nugent [321 F.3d 35, 43] and Jones v. Taibbi [400 Mass. 786, 795 (1987)], the defendants argued that the police blotter reports were protected by the fair credit reporting privilege which protected published reports of arrest by police. The defendants further contended that the report from the police blotter was factually accurate and as per the Supreme Court, “the press has a wide, unfettered berth, to publish truthful information” [p. 3]. As per the judge, the case was not that of defamation and although the subsequent events may have made the reports less relevant, nonetheless they were truthful. The judge also referred to Section 258D(7) of the Massachusetts General Law, which talks about expungement or sealing of records/hearings, and stated that the provision did not govern what the press may or may not choose to publish [p. 3].

The judge found the law to be contrary to the plaintiff’s position. Lastly, the judge opined that, “what could add more fuel to the calls of ‘fake news’ or serve to undermine fact-driven debates if erasing, modifying or white-washing historical and factual events and statements was required when current events or sensibilities made the past truth, inconvenient or uncomfortable?” [p. 3]. Quoting the late Senator from New York, Daniel Patrick Moynihan, the judge emphasized that “everyone is entitled to his own opinion but not to his own facts.” The judge also cautioned the press or “the fourth estate”, to report the true facts, and not to “create or recreate them to make them more palatable for public consumption”. In the present case, the press had published true facts and resultantly, the defendant’s Motion to Dismiss was allowed by the Court.