Publishers not liable for internet posting of “erased” arrest records

john-peter-zenger-trial-granger-ywgd2c-1When Lorraine Martin and her two sons were arrested in 2010 at their home in Greenwich, Connecticut on drug charges, it was widely reported in the local media.  A year later, when the state decided to drop the charges against her, the record was automatically “erased” and Martin was “deemed to have never been arrested” under Connecticut’s Criminal Records Erasure Statute.  But the contemporaneous news accounts remained available on line, and the publishers refused to remove them.

Martin sued in federal court on various tort theories, including libel and invasion of privacy, relying on the “deemer” provision of the Erasure Statute.  The district court ruled that the publishers could not be held liable because the accounts were true when published, and the Erasure Statute “does not purport to change history.”  The Second Circuit affirmed. See Martin v. Hearst Newspapers, Docket No. 13-3315 (2d Cir., Jan. 28, 2015).


courtroom17tnThe court of appeals explained that Connecticut’s Erasure Statute was intended to operate in the context of the justice system, to prohibit disclosure by government agencies, to bar reliance on the arrest in any subsequent criminal proceeding, and to permit the person arrested to swear under oath that the arrest never occurred.  However, it was not intended to create any duties on the part of private parties (notably including publishers) or create a cause of cause of action against them.

The few enumerated exceptions to the erasure requirements and the statute’s text confirm that the legislature contemplated erasure only in the context of the judicial and law enforcement systems. As the district court reasoned, “nothing in [§ 54-142a] suggests any intent to impose requirements on persons who work outside courts or law enforcement agencies, and nothing suggests any intent to mandate the erasure of records held by such persons.”

In short, while the Erasure Statute requires the state to delete or expunge records of an arrest, and confers on the arrested person the “legal status” of a person who has never been arrested, “it does not and cannot undo historical facts or convert once-true facts into falsehoods. . . .  The Moving Finger has written and moved on.”

Courts in other states with analogous statutes had reached the same conclusion.  See, e.g., G.D. v. Kenny, 15 A.3d 300, 315–16 (N.J. 2011)(“Although our expungement statute generally permits a person whose record has been expunged to misrepresent his past, it does not alter the metaphysical truth of his past, nor does it impose a regime of silence on those who know the truth.”); Bahr v. Statesman Journal Co., 624 P.2d 664, 666 (Or. Ct. App. 1981) (“The [expungement] statute does not . . .impose any duty on members of the public who are aware of the conviction to pretend that it does not exist. In other words, the statute authorizes certain persons to misrepresent their own past. It does not make that representation true.”); Rzeznik v. Chief of Police of Southhampton, 373 N.E.2d 1128, 1133 (Mass. 1978) (“There is nothing in the statute or the legislative history to suggest that, once the fact of a conviction is sealed, it becomes nonexistent, and hence untrue for the purposes of the common law of defamation.”).

The result in Martin and other similar cases might easily be different under the expansive European law of privacy that produced the “right to be forgotten” holding of the European Court of Justice last May against Google.  Posts on this site by James Jacobs and Elena Larrauri suggest that it would.  The process put in place as a result of the European Court’s decision enables people to remove links to unwanted content from Google’s search results, and it has been applied in a few cases to dated minor criminal records.  The relevance of the Google ruling for American privacy law is discussed in a September 2014 New Yorker article by Jeffrey Toobin, available here, that will be fascinating to American readers and may cause a frisson in the American publishing world.