Legacy news organizations have been trying for more than a decade to crack the code of what to publish digitally, where and when. Now they are fielding a different kind of urgent request from readers — can you "unpublish" that?
The cause is obvious — people routinely get Googled by potential employers, dating partners or the just plain curious. That 20-year-old drunk and disorderly arrest has a way of popping to the top of the list.
A remedy is less clear. Most newspapers have had a longstanding practice of removing published stories only under extraordinary circumstances. But does that still make sense in the digital era as the potential rises for damaging people's reputations with long ago or out-of-context accounts of their misdeeds?
Though a judgment call for editors, these dramas play out against a complex and changing legal background. Most states allow for a form of "expungement" of the record of convictions — sometimes even for felonies — if the offender has stayed clean for a period of years.
In May 2014, the European Union's highest court ruled that there is a privacy "right to be forgotten" — and that Google needed to respond to any reasonable request that information "inaccurate, inadequate, irrelevant or excessive" be removed. (The case was brought by a Spanish businessman who wanted to unpublish an account of an earlier insolvency).
The right to be forgotten concept has not yet made it across the Atlantic, but it is easy to imagine privacy advocates taking up the cause in state legislatures or Congress.
I became aware of the recent surge in such requests six weeks ago when Zach Ryall, digital managing editor of the Austin American-Statesman called Poynter asking if we knew of an ethics code providing guidance.
"This is getting scary," Ryall told me. "We are responding to more and more of these...And when I checked with my colleagues at other Cox papers, I found they are too."
Some of the callers are courteous, others belligerent, Ryall continued, but the concerns stick to several common themes:
It's horribly embarrassing; I can't find a job. You're ruining my relationship with my wife.
A typical case might involve a story reporting an arrest on charges that later were dropped. Does adding an update to the digital file undo the damage?
Ryall and others alerted me to a compromise solution — a story can remain in the paper's archives, but the link to Google broken. However Ryall agreed with me that in practical terms the effect may be three-quarters of the way to unpublishing.
The matter of developing a new policy remains open at the Statesman, Ryall told me later. Meanwhile, stories are taken down only under unusual circumstances — "if we unknowingly endangered somebody or did not have permission to use information or received it improperly."
The issue surfaced at the ASNE-APME convention earlier this month in a panel on Freedom Information issues. Nancy Barnes, editor of the Houston Chronicle, said that she and other editors are being "besieged" by requests to delink. Her rule of thumb had been to say "we don't do that," but now she is making decisions on a case-by-case basis.
I also found that right up the street, my colleagues at the Poynter-owned Tampa Bay Times have established a new working group that meets quarterly to review individual cases and, over time, codify how to deal with them.
Managing Editor Jennifer Orsi offered a novel example of an appeal she did grant. Some years ago, the TBO.com site (absorbed when the Times bought the Tampa Tribune), ran a business feature on a man who was starting a "naked maids" service. The owner was profiled while interviewing an applicant who gave her name and talked about why she was willing to make some money stripping and then cleaning houses. "Now she is making her way in the business world," Orsi said, "and it doesn't seem fair for that to follow her around."
Similarly, Barnes told me that she was sympathetic to a request from a young woman who had been reported as a teen runaway but now has turned things around and is going to college. "This is something editors are going to be dealing with more and more," Barnes said, and both editorial judgment and legal considerations need to factor in.
Ryall said that though delinking "seems a naturally obliging thing to do," he remains reluctant. One persistent reader wants a story removed reporting that he stabbed someone at a party (who later died). The man was arrested but not convicted. Even so, Ryall said, "I can't see it — that's plenty serious."
None of the editors I spoke with had a clear sense of what is behind the surge of requests. After all, the Internet and Google searches have been around for a while.
The EU ruling could have raised awareness and privacy concerns seem to grow by the year. Also it is easy to find (with a Google search) advice or even a service for a fee to get an article removed.
Checking with chains, Randy Siegel of Advance Local told me the inquiries are not yet a big problem. Brent Jones, standards and ethics editor of the USA Today Network, commented by email:
Newsrooms are guided to keep the bar high when considering removal of content from digital platforms. Our journalists strive daily to preserve the integrity of the published record, including publishing corrections or clarifications. We do so in the interest of the public’s right to know now – and in the future. Take-down requests are weighed on a case-by-case basis with senior editors, and some situations may require legal guidance.
For now, case-by-case seems to be the norm. I was surprised to read that since the EU ruling, Google has received literally hundreds of thousands appeals to disable links, granting about 40 percent but turning down the majority.
My Poynter colleague, ethics expert Kelly McBride, has been pulled into the Times' working group. The matter was not examined in the 2014 book she and American Press Institute Executive Director Tom Rosenstiel edited, "The New Ethics of Journalism: Principles for the 21st Century," but she said that the trend has now grown too big to ignore.
She does not have a ready rule of thumb either.
"...I don't think we should just be saying reflexively, 'we stand by our reporting,'" she said. "This may be an occasion to examine standards of reporting and question the one-source police report. Some of those are pretty damning. Even if you have a legal right to cover, morally do you?"
Poynter's earlier "Guiding Principles for Journalists" in making ethical decisions, written by McBride's predecessor Bob Steele, had as one of three key concepts to "minimize harm" on sensitive stories or when interviewing someone unfamiliar with prevailing journalism standards.
It seems clear that long-tail damage to reputations has greatly expanded in the digital era where a simple Google search turns up information that once might have required courthouse digging. I have a hunch that sorting out good practices will remain a work in progress for awhile — but also that this particular genie is not going back into the bottle.