History is history, and expungement (or expunction for the purists) is expungement. The legal erasure of a conviction is a remedy of sorts against the collateral legal consequences of conviction such as ineligibility for certain occupations. But, the Internet never forgets and search engines are nearly all-seeing. Hence a new class action suit in Connecticut that seeks defamation damages against local news outlets responsible for news stories concerning events tied to records that are subsequently expunged. The woman who brought the suit had been arrested on a marijuana violation, but the arrest was expunged after she participated in a drug education program. Former New York Times executive editor Bill Keller, in a NYT op-ed, finds the reasoning behind the lawsuit torturous:
There are passages in the court briefs that make you think the lawyers were possessed by the ghost of Lewis Carroll. They debate the difference between “historical fact” and “legal fact.” They dispute whether something that was true when it happened can become not just private but actually untrue, so untrue you can swear an oath that it never happened and, in the eyes of the law, you’ll be telling the truth. Several pages and copious footnotes are devoted to considering what the meaning of “publish” is. Martin’s lawyers insist that every time a search engine delivers the old story to a new reader, it amounts to republishing, and constitutes a new libel. The defending news companies say that is ridiculous.
Despite his obvious doubts about the legal arguments in the class action suit, Keller is sympathetic to the problem of the tyranny of Internet memory and suggests that the new European initiative to enshrine a “right to be forgotten,” in the law may get some traction here.
HT: ABA Journal