Europe's 'Right to Be Forgotten' Law Applied to Health Care: Public Health Watch
Is there a chance of similar legislation in the United States?
When asked about the issue of political correctness in humor, comedian Mike Meyers, of “Saturday Night Live” fame, once said, “This is a question Europe tends to ask and America doesn’t.”
Whether that’s still the case is up for debate and, beyond the purview of this space, it turns out there are other important questions asked in Europe and not in America that have a direct influence on the practice of medicine (not to mention other transactions). One of those questions is: Does a physician’s troubled past have a “right to be forgotten” when potential patients research them on the internet?
That question, of course, refers to the European Union’s (EU) so-called “right to be forgotten” law. Established in 2014 via a ruling by the European Court of Justice, this provision essentially enables EU citizens to ask search engines to remove links to “irrelevant” or “excessive” (read: negative) content if they can prove it is no longer relevant.
The law has implications for the practice of medicine, as evidenced by a recent court case in the Netherlands, in which a surgeon demanded that a search engine—namely, Google—change the search result content pertaining to her name because it directed users to a physician “blacklist” site that provided details of a past suspension of her license to practice. In truth, the surgeon had been suspended following allegations of negligence during postoperative care; however, her suspension was later overturned on appeal. In ruling on the surgeon’s case, a judge with the district court of Amsterdam noted that the plaintiff had “an interest in not indicating that every time someone enters their full name in Google’s search engine, (almost) immediately the mention of her name appears on the ‘blacklist of doctors,’ and this importance adds more weight than the public’s interest in finding this information in this way,” The Guardian newspaper reported.
Notably, the case marked the first instance in which a health care professional sued a search engine under the “right to be forgotten” law. And, in its aftermath, there are physicians in the United States who would support similar legislation here. To date, there is no such provision—at the federal, state, or even local level. However, according to a 2018 blog post on Forbes.com, New York state has considered a law modeled on that of the EU, although the makeup of the legislature has changed since the post was published.
At least some US physicians would love to see “right to be forgotten” make the journey across the Atlantic. A gastroenterologist who spoke to Contagion® on the condition of anonymity said that patients angry with his staff over insurance-related issues have adversely affected his practice through negative reviews on several online platforms.
However, here in the United States, any attempt at “right to be forgotten” would likely be challenged on the grounds that it impinges on freedom of speech, at least according to an executive with a physician review site who spoke with Contagion®.
“To me, ‘Right to Be Forgotten’ is hard to reconcile with US law,” Ted Chan, founder and chief executive officer of CareDash.com, a physician review site with more than 1 million monthly users, said. “It’s important for sites like ours to be fair and transparent to providers and patients alike about the processes and data, though. At the end of the day, from a health care perspective I’m in favor of whatever helps patients make the right decisions about their care.”
According to Chan, CareDash.com uses artificial intelligence and “machine learning” to remove “fake reviews” from its site. Interestingly, though, a survey by the Benenson Strategy Group suggests the general public (and, thus, patients) may be on the physicians’ side in this debate. In all, 88% of respondents to the survey said they would be in support of “right to be forgotten” legislation in the United States.
To date, the Infectious Disease Society of America has not taken a position on the EU law, and isn’t offering guidance to members on it or related issues at this time, according to a spokesperson.
So should infectious disease specialists and other physicians have a “right to be forgotten” online? There is that old saying that “there is no such thing as bad publicity.” However, when it comes to some information patients and potential patients can find online, that cliché may not apply.