“Right to be forgotten” takes down BMJ’s 15-year-old film review

A subject in a documentary film about the psychology of religious ideation has pushed the BMJ to take down its review of the film, based on a complaint citing a European internet privacy rule.

On July 3, BMJ posted a retraction notice for an article that barely said anything:

This article has been retracted by the journal following a complaint.

The 2002 article is a review of a documentary film entitled “Those Who Are Jesus,” directed by Steven Eastwood, a British filmmaker. The review has been removed from the BMJ site, as well as PubMed.   

BMJ told Retraction Watch that it took down the film review in response to a European citizen exercising his or her “right to be forgotten,” an internet privacy idea that, according to the European Union, ensures:

A person can ask for personal data to be deleted once that data is no longer necessary.

The journal declined to comment, beyond saying:

This review was taken down following a request based on the European Court of Justice’s ruling in the 2014 Google Spain case about the right to be forgotten.

Barely any information about this film exists anywhere on the internet. The only description we could find was from a 2015 post on the blog Boing Boing, which says the film is about:

Three people who have true delusions of grandeur based on “profoundly religious or revalatory (sic) experiences.”

That blog post once contained an embedded video of the documentary, but that has been removed as well. It’s unclear if these disappearances are related.

So far, the right to be forgotten has only been established in Europe — with legal underpinnings dating to at least 1995 — and Argentina. In the EU, individuals submit requests to search engines or other web indices, which then decide internally whether to comply or not; if the request is rejected, the individual can sue and let a court decide whether the search engine erred in its decision.

Google continues to fight the landmark 2014 case and its aftershocks: A French data regulator has ordered Google to implement the right to be forgotten globally, and not just on its sites facing European countries (i.e. Google.fr). Google has challenged this ruling and the matter will be heard soon by the Court of Justice of the European Union, the EU’s top court.

One legal expert familiar with the European rules said he was “puzzled” as to how the “right to be forgotten” might apply to the BMJ film review. Jonathan Zittrain, of Harvard Law School, told Retraction Watch:

It’s an article about a film and it’s the person writing the article’s judgement about the film. It’s hard to imagine how this would apply. It’s possible that if BMJ had said no, that would be the end of it. I’m having to hypothesize what the claim is. Maybe they were just nervous and said “who cares?” so they just took it down.

Part of Zittrain’s confusion was why the BMJ pulled down the article at the source:

The right to be forgotten, as applied in Europe right now, has been all about search engines…

As it turns out, the documentary subject did go after the entry at the index — in this case, PubMed.

Joyce Backus, the associate director of library operations at the National Library of Medicine (NLM), where she oversees the content of PubMed and MEDLINE, told us:  

Somebody wrote to us [about the article] in late April. We forwarded it to BMJ and they looked into it and indicated they would withdraw it for legal reasons in late May.

All that remains on PubMed is an automated notice that says:

For legal reasons, the publisher has withdrawn permission for online, public display of this article via PubMed Central.

Backus said the process was entirely controlled by the journal, although NLM will often forward takedown requests:

[The journal is] the instigator. It’s not that we are choosing to comply or not comply with the EU right to be forgotten. They’ve decided through their editorial process to withdraw based on legal processes. I believe they can do this in our system.

All told, Backus said the process took about a month. She told us that the PubMed Central staff deal with article takedowns, often for privacy issues, “a couple times a year.” She added:  

In my experience I don’t believe we’ve ever declined a request.

She noted that though the film review isn’t online, it’s not gone forever:

You can’t withdraw items in print. Go to a library that has BMJ. Depending on where you are, a good medical library will have it.

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12 thoughts on ““Right to be forgotten” takes down BMJ’s 15-year-old film review”

  1. BMJ should reconsider this action.

    The scientific literature must be transparent and forever.

    Retracted papers must be accessible, but clearly marked.

    Papers from failed journals must be archived somewhere (challenging).

    The fact that a journal could completely expunge an article (no matter the content/significance) is troubling.

    1. Digital is too easily manipulated. I am not arguing against digital, but for multiple formats esp. print. Having worked in special collections, I know the lasting power of books made of quality materials.

  2. Agree that the archivists need to establish firm rules about destroying or manipulating content. BMJ at this moment I’m looking at you.

    Redundancy in digital archives can help with preserving the record accuracy.

    Unfortunately, paper books can be manipulated too – most dramatically by burning them.

  3. I was surprised and disturbed that Pubmed Central would go along with deliberate destruction of the historical record like this. Apparently their permission to host articles can later be withdrawn. This is a patently inadequate legal basis for an archive.
    The article has also disappeared from PMC mirror sites:

    Converted HTML versions are still available for subscribers to Gale or Proquest, but I wonder for how long:

    The survival of these copies illustrates the importance of archiving in multiple repositories; even purportedly open access journals that appear to be archived independently can make inconvenient materials vanish.

    Hilariously, only two words of the retraction notice are freely available. If you want the other six words, they’re going for the bargain price of $37. That’s less than $7 per word! Buy now, our operators are standing by.

    1. Converted HTML versions are still available for subscribers to Gale or Proquest, but I wonder for how long:

      It’s still on JSTOR too.

  4. In the U.S., copyright law has had the same result — of deleting articles from electronic archives.

    The Supreme Court case New York Times v. Tasini, https://www.law.cornell.edu/supct/html/00-201.ZO.html https://en.wikipedia.org/wiki/New_York_Times_Co._v._Tasini ruled that newspaper publishers did not have the right to include articles by freelance contributors in their electronic archives (their own or Lexis/Nexis), but were required to get a separate agreement from the contributors.

    Jonathan Tasini and the National Writers Union, who brought the case, anticipated that the New York Times might pay freelancers more money for rights to use the articles in the archives, but the Times said that would be economically impossible and refused. Freelancers could give the Times permission to keep their articles in the database for free. If the freelancer died or can’t be located (orphan works), the article is deleted. So the archive is turned into Swiss cheese.

    So when I searched nytimes.com for articles written by Tasini, or freelance articles from the New York Times Magazine, I didn’t find them. More recently, some Times databases are available in different formats that may not be covered by the Tasini case, for example microfilm and the digital equivalent of microfilm, entire pages of the Times in PDF. Google’s scanned newspapers don’t seem to be covered by Tasini.

    At one time, the contract between newspaper publishers and freelance writers for short articles was “a handshake.” This case determined what was implied by that “handshake.” After the Tasini case was filed, newspapers started requiring written contracts which usually included the right to use the articles in archives and databases more explicitly. So you can get articles written under the new contracts. But for old articles, you’ll have to go to microfilm or paper.

  5. Zittrain is correct, the legal ruling ONLY applies to search machines. But so many journals (and universities) these days are frightened by the thought of legal action, and are encouraged by their own legal teams to err on the side of caution to the detriment of the scientific record. We need more journals and universities with the backbone to stand up for what is right, even if it means going to court.

  6. If it were my decision, I would keep it in the archive. However, I am not entirely confident about making public the personal details of patients who are not competent to consent.

    This is a review of a movie about people with severe mental disease. They agreed to be in the movie, but because of their disease, they may not have been fully capable to consent.

    Andrew Holtz once said that when he was working at the CNN medical unit, they would let a patient retract permission to run the story. “If the patient says ‘I don’t want to use that,’ 2 minutes to air, we’d pull the story. That was the rule at CNN.”

    That was not the rule followed by the documentary filmmaker Ricky Leacock, in Titicut Follies. He argued that it was a greater good to expose the abuse of mental patients, which could lead to reforms.

    I will leave this discussion to an ethics class.

  7. An interesting thing to ponder, will be if they’ll just republish it after the UK leaves the European Union.

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