Archived Arrest Stories Are Like Zombies Rising From The Grave

Zombie Graveyard
Zombie Graveyard
Like zombies rising from a graveyard, the Internet gives undying life to old news. And old news often doesn’t look, feel or act like it did originally.
photo credit: jcoterhals via photopin cc

[UPDATE 1/28/2015: Martin’s appeal to the lower court decision described below was rejected by the 2nd U.S. Circuit Court of Appeals in Manhattan.]

A federal judge in August dismissed a class action defamation lawsuit filed against three Connecticut news outlets.

U.S. District Judge Michael P. Shea rejected Lorraine Martin’s claim that archived online news articles detailing her 2010 arrest on drug charges on the websites of The Connecticut Post, The Stamford Advocate, and The Greenwich Time — all owned by Hearst Corp., as well as News 12 and Main Street Connect LLC, (also known as The Daily Voice) defamed her, caused emotional distress, cast her in a false light and invaded her privacy.

Martin, a nurse from Greenwich, Connecticut, was arrested on Aug. 20, 2010 with her two sons. The stories about Martin’s arrest were factually true and newsworthy when originally published by the three news organizations. However, Martin’s lawyer argued that when Connecticut courts dismissed the criminal charges against Martin in January 2011, the state’s erasure or expungement laws entitled her to “be deemed to have been never arrested as a matter of historical fact, rendering false any statements to the contrary.”

Martin wanted the original articles about her arrest — still accessible online — to be labeled as libelous, and deleted.

But the judge disagreed in his Aug. 5, 2013 decision, stating Connecticut lawmakers “had something more modest and more technical in mind than the sweeping, history-altering design perceived by Ms. Martin.”

Connecticut’s erasure laws permit individuals to legally deny the fact of the arrest “in court and other official proceedings.” The laws also require courts and law enforcement agencies to physically destroy arrest records three years after the disposition of a case upon the request of the accused.

“There is no evidence in the text of the statute that the legislature sought to go any further than that—and not the slightest suggestion that it sought to muzzle private persons who might have obtained arrest information… or, for that matter, to change history.”

Quoting a similar case in New Jersey, the decision states:

“[T]he expungement statute does not transmute a once-true fact into a falsehood. It does not require the excision of records from the historical archives of newspapers or bound volumes of reported decisions or a personal diary. It cannot banish memories.”

Read the full decision below:

The dismissal is a win for the First Amendment, both freedom of speech and freedom of the press. The judge’s decision protects the factual work of news organizations from being erased from the Internet just because an archived news story may seem detrimental to someone’s reputation years later.

The case, however, doesn’t solve the stickier ethical questions surrounding news organizations’ responsibilities in the digital age. Unlike print or broadcast news stories which appear for one day and then dissipate from the public’s attention, the Internet has a long memory that is archived and searchable. What once may have been buried deep in a news organizations’ morgue is now being dredged up indiscriminately by Internet search engines.

Like zombies rising from a graveyard, the Internet gives undying life to old news. And old news often doesn’t look, feel or act like it did originally.

THE RIGHT TO BE FORGOTTEN?

Whether we like it or not, the World Wide Web has created a situation where every time a news organization includes someone’s name in an online post, caption or tweet, that news organization is influencing someone’s reputation, in perpetuity. Litigation stemming from the publication of online arrest stories and mugshots is ongoing. The fear is that if our industry doesn’t come up with best practices to deal with these issues, one may eventually be legislated for us.

If professional journalists and their respective news organizations are charged with seeking and reporting as much truth as possible, then we should be following the arrest cases to which we draw the public’s attention through to conviction or dismissal. We don’t do this consistently. Some news organizations still publish police blotters and never follow up.

Only one of the defendant news outlets in the Martin case appears to have updated its original story about the Greenwich woman saying charges against her were dropped.

If we don’t follow up regularly on the cases which we draw the public attention, then we are providing the audience with only half the story. And in my opinion, journalistic half-truths aren’t deserving of a perpetual life. Online half-truths are wreaking havoc and destruction on people’s reputations. Half-truths warrant the right to be forgotten.

If newsrooms won’t or can’t follow up on arrest articles due to staffing constraints, put an expiration date on stories of obsolescence.

The University of Connecticut’s student newspaper, The Daily Campus, adopted such a policy in 2009 after being inundated with requests from former students whose names appeared in the weekly police blotter. The policy said all police blotter stories will be removed from www.dailycampus.com after two years.

It is not a perfect solution. It’s a compromise. News organizations have the right to cover news when it happens. Individuals also have the right to protect their reputations with a full accounting of the truth.

Additional reading:

Hearst Corp. Defeats Arrestee’s Defamation Claims – Law360.com (subscription required)

The (relative) truth about defamation – National Constitution Center

Erasing History in the Internet Era – New York Times

Is Follow-Up Required on Campus Police Blotter Reports? Scholars Speak Out – imediaethics.org