A Whistleblower’s Right to Be Forgotten?

While writing the blog post last week about the 5th Circuit opinion in Halliburton (disclosure of identity to work colleagues was retaliation), I encountered a story on Mashable about a banker who filed a lawsuit against Google to have defamatory, anonymously authored posts about him removed from its search results. It made me wonder whether there should be a similar opportunity for whistleblowers to have their name removed.

More regulation of search results in the United States seems destined to happen eventually. This could be a worthy place to start.

In May, the European Court of Justice provided EU citizens with the right to be forgotten. Search engines must remove outdated or irrelevant personal information when requested by a European citizen.

The lawsuit discussed in Mashable was filed in Hong Kong by ex-Morgan Stanley banker Daniel Hegglin. According to Hegglin, more than 3,600 websites have abusive and untrue statements posted about him. The lawsuit sought to have Google proactively remove the material. Google settled, according to Mashable, because a negative precedent might require it to remove all false information from its search results.

The law in this area will continue to grow over the next few years, and it makes me wonder whether adding another layer of protection for the confidentiality of whistleblowers is warranted.

The SEC, CFTC and IRS all provide for certain confidentiality protections for a whistleblower’s identity. However, there are no guarantees.

A dispute between an award recipient and his business partner led to the disclosure of an individual’s identity earlier this year when a lawsuit was filed by the business partner. The name of the whistleblower was not redacted and the lawsuit was not filed under seal, so a reporter learned his identity and published the story.

Should this individual, who was protected from disclosure through the whistleblower program, be able to have his name removed from the search results as well?

The 5th Circuit in Halliburton recognized the potential consequences of the disclosure of a whistleblower’s identity to colleagues. The logic extends beyond the person who works in the next office. Is it not potentially problematic that future employers can search for their applicants name and see their past activity as a whistleblower?

There are a number of steps that can be taken to protect a whistleblower’s name from disclosure. Still, if it gets out, would it not be best to have some way for an individual to step back from the limelight?

The need for this option seems even more important in light of the recent 6th Circuit decision leaving job applicants unprotected against employers in the hiring process. The names of relators under the False Claims Act are revealed when the lawsuit is unsealed following investigation by the Justice Department. Offering a means to control the damage from public exposure might do more to encourage whistleblowing.