Ask an Attorney: Responding to requests to take down content

In the digital age, somebody’s worst moment can be the first result a Google search returns on them, potentially forever. Increasingly, news publishers are being asked to take down content that the person making the request wants the world to forget. Whether the profession of journalism—the self-proclaimed “first draft of history”—should be in the business of unpublishing yesterday’s news presents thorny practical, ethical, and even existential dilemmas.

By CHIP STEWART, Texas Christian University, and DEBORAH L. DWYER, Reynolds Journalism Institute

Our collective ability to remember is virtually endless with the help of a simple Google search, which transforms a news story into an indelible record that may inflict real harm in present-day life. A person named in the news for a drug arrest 10 years ago, for example, may claim the information is damaging to his current job search. But old criminal arrests are just one of hundreds of reasons a person may ask a newsroom to unpublish information about them.
Many newsrooms in the United States that took staunch stances against unpublishing initially are rethinking that position and relaxing their standards. Best practices and new policies are emerging in newsrooms reconsidering the permanence of their digital content. Below, we answer some common questions and offer suggestions for those considering drafting an unpublishing policy.

Is a news organization legally required to unpublish?
The legal part of the unpublishing equation is relatively simple. With very little exception, publishers cannot be required to take down what they have already published. The First Amendment generally forbids courts from ordering takedowns of this sort, classifying them as unconstitutional prior restraints on publication. The Texas Supreme Court recognized a narrow exception to this in 2014 in the Kinney v. Barnes case, in which it ordered a website to take down a statement that a lower court had already ruled to be defamatory, and thus no longer protected by the First Amendment.
But items that are accurate but merely unflattering—such as reports of an arrest that did not lead to charges, youthful indiscretions or minor offenses—will not result in court orders to unpublish. Similarly, expungement orders only apply to government agencies that maintain criminal records, not news publishers. This is not to say, however, that individuals will avoid pursuing any legal claim; although they likely won’t win, the process can inflict distress and drain resources in a strapped newsroom.

What actions constitute unpublishing?
Most editors equate unpublishing to removing the content from the news organization’s content management system, thus making it no longer accessible by the public on the news website. But it may not be that simple. Is the information still archived somewhere else for posterity? Can your newsroom staff access the information? Research indicates most organizations that unpublish equate it with deleting content from things under their control. Very few say they have made efforts to help scrub the information lurking in other areas of the internet, such as social media, LexisNexis or the Internet Archive.

Are there effective alternatives?
There are several alternatives to directly removing content that may satisfy concerns of the public while also being more acceptable to journalists reluctant to take down accurate news content. A few of the most common alternatives are listed below:
1. Delisting the information from search engines
“Hiding” the content from the prying eyes of search engines is one alternative to unpublishing. Using code or through a request to the search engine, you may be able to remove items from being found, even while they remain published on your website and in your archives. The Southeast Missourian announced a delisting policy in 2018 that automatically blocks crime reports from search engine results after six years of publication. In addition, it states the organization will “generally remove staff-written crime articles” for misdemeanors if a request that meets certain criteria is received.
2. Removing identifying information
At times a requestor is satisfied with the replacement of their identifying information with an anonymous identifier, such as replacing a child’s name with “a third grader at ABC Elementary.”
3. Updating the information
The easiest and widely used alternative, especially for criminal charges that have been reduced or dismissed, is to update the article—but this option comes with a catch. Updating an article on your website may update the timestamp, which could re-emphasize the content in search results.
4. Adding an editor’s note
In tandem with article updates, adding an editor’s note to the top of the page is a suggested best practice to offer the context and transparency audiences appreciate. Studies have shown that actions to “correct” information helps boost trust with the public.
5. Writing a new article

Although some news organizations will offer to write a separate article on a request in which a criminal charge was reduced, for example, this does not effectively address the dated content, which could still be returned in a search result in a vacuum. Even reputation management companies discourage this approach for clients. The better choice is to correct the initial article with an editor’s note at the top of the page.
6. Altering crime reporting practices. Newsrooms are exploring specific tactics related to crime and court reporting, including only reporting on cases in which they are committed to seeing through to conclusion and limiting the use of mugshots. This can reduce requests to update arrest reports that lack follow-through, but some watchdog advocates suggest the approach is problematic. Other news organizations have ceased publishing their mugshot galleries because of their long shelf life, including The Chattanooga Times Free Press and South Florida Sun Sentinel.

What should publishers consider when drafting an unpublishing policy?
A policy helps make your approach to unpublishing consistent and transparent, and possibly fend off requests that are most easily dismissed. Here, we offer a few points to consider:
• Even if your organization will not entertain requests to unpublish, your policy should state that as a general rule, your news organization does not remove articles based on requests that people in those articles may find embarrassing or otherwise harmful.
• If you are open to considering unpublishing requests, defining the limits of content you will consider is important. Will you unpublish an expungement? Only misdemeanors, or felonies as well? What about marriage announcements or obituaries? Some organizations argue that having such a policy limits their flexibility to make decisions, but this can be managed with the language in your policy and the level of detail you provide.
• Build a committee. A single editor making unpublishing decisions in a vacuum is problematic. Most experts suggest building an unpublishing committee composed of several newsroom leaders and staff, conducting regular meetings for the group to consider and resolved requests.
• Consider involving your audience. A few news organizations have involved their audiences to some degree as they explore potential policies. Cleveland.com fully promoted their “experiment,” proactively inviting individuals who would like content about them removed to make a request. Other organizations have not gone that far, but have polled their audiences or asked them to “play editor” for requests received by the newsroom.
• Write it down. In 2017, a small survey of editors found 80% had an unpublishing policy, up from about half in 2009. However, the vast majority did not put their policy in writing, nor did they share it freely in the newsroom (and most definitely not with the public!).
• Maintain the URL of unpublished content with an editor’s note that explains the content has been unpublished, with as much as context as appropriate. This ensures content does not simply “disappear” if links to it are available elsewhere. Unpublishing with no explanation is detrimental.
• Consider unintended consequences. If you unpublish for one person—let’s say, a prominent white lawyer charged with a specific crime, will you do so for everyone similarly charged who contacts you? What about those who may not know they can? There are dozens of hidden pitfalls that can exacerbate social injustice and inequity. Explore how you can even the playing field and ensure you are as equitable as possible in your decision making.
One final thought is that the time to consider unpublishing is before anything is ever published in the first place. Revisiting daily editorial decisions can stave off many of the typical requests. Simple changes could be reconsidering what kind of crimes warrant attention, limiting when children are identified, and conducting newsroom training on gaining informed consent from sources.