Google has changed the world. This Wednesday the New Hampshire House Judiciary Committee will hold a hearing on HB1157, which seeks to dull the effect Google has on the lives of those charged with crimes. This bill blows a massive hole in the First Amendment without fixing the Google problem.
“Liability of News Media. The failure of a New Hampshire news media organization to update, retract, or correct an Internet published story concerning a criminal proceeding against a named person, immediately following written notification of the media organization by the injured person of a subsequent finding of not guilty, acquittal, or dismissal of the charges against such person in a criminal proceeding, shall result in the liability of the New Hampshire news media organization for any damages incurred by the person caused by such failure.”
The scenario (familiar to any current news editor) plays out like so:
Requestor: “When I Google myself your story about my arrest shows up first. I want it taken off of there.”
Editor: “Is the story incorrect?”
Requestor: “Yes, what the cops said happened was all wrong.”
Editor: “Were you arrested?”
Requestor: “Yes, but I didn’t do it.”
At the Union Leader and most other reputable news organizations the editor will then see if legal documentation can be obtained to update the story with the outcome. Sometimes charges are dropped or re-filed, some cases are dismissed or go on to a finding of not guilty, mistrial, etc.
Our practice is to request legal paperwork from the requestor so the story can be updated with a note on the outcome. As powerful as the press has been proclaimed to be we cannot change history. If a person was arrested they do not magically become un-arrested when charges are dropped.
Beyond the attempt to re-write the history of an arrest, this bill fails in its apparent intent, removal of the requestor from Google. Not being a “New Hampshire news media organization,” Google will be exempt from this law, as will all of the Massachussetts stations and other news outlets around the country that carry news of New Hampshire arrests. There are also the lingering digital breadcrumbs of news aggregators, internet archives, and caches that cannot be un-rung.
The bill seems to leave the organization open to liability if they do not update, retract, and correct a story and doesn’t specify which of those options would be satisfactory.
HB1157 states the change to the story must be made “immediately following written notification... by the injured person.” Even in the internet age “immediate” is a very difficult standard, allowing no time for fact-checking the information provided (the person does not seem to be obligated to provide legal documentation, simply “written notification”). The bill seems to require immediate changes to a story even if such written notice is incorrect. Incredible, we know, sometimes criminals lie.
The expectation that news media update their stories on criminal proceedings is not the problem; most do now. The problem is the compelling of a news organization to publish anything. Allowing the wrongly accused to move on with their lives seems admirable, but what of those on the losing side of a political debate or an appealed lawsuit? Many can claim to have been wronged by the media’s “first draft of history.” News is, by definition, reported as it happens with available facts at the time. The First Amendment contains freedom of the press because our founders knew the right of an independent press to operate without government interference was paramount to democracy.
Google has severely complicated life for many in the news. Our advice to the bill writers, take it up with Google and let us know how it goes. We will update the story.