Do We Have a 'Right to be Forgotten'?

By Peter Bernstein June 17, 2013

With all of the headlines about government surveillance, which has sparked a vigorous debate about citizens rights to privacy versus the government’s need to collect information to protect national and international security, there is an interesting related issue rising to a head in Europe that commands attention. As highlighted in an expansive item in the New York Times, French archivists have approached the European Union (EU) concerning if, when, how and by whom information can be permanently deleted from cyberspace.   In short, is there a “right to be forgotten”?

As the posting explains, this is a non-trivial matter.

Getting rid of damaging information vs. compiling a historical record

Without going into all of the details, what is important to know is that with some of the strictest online privacy protections in the world, the EU is in the process of legislating even tighter controls. As noted, one EU measure would grant Internet users a “right to be forgotten.”  This roughly means - details to be figured out - letting people delete damaging references to themselves in search engines, or remove compromising posts or photos from social networks forever.  The push back from the French archivists is where should the line be drawn about what can and should be disposed of in perpetuity. They argue that there is a counter-veiling collective right to keep records of even certain things we might wish to put in the digital dustbin.    

They make an interesting point, since along with public information like birth and death certificates, real estate transactions, tax histories, etc., much of what we know from the past came as a result of the preservation or uncovering of letters, diaries and other documents. It is the way in which historians are able to know what the realities were of life at a given point in time, as opposed to the observations of societal observers, and is in many ways even more important. In the digital age, who we are, how we feel, what is important and a host of other things about our collective behavior is being captured for in theory posterity on the Internet. The real fear is that this invaluable record, which some say is the “first draft” of history, will be lost, or at a minimum diminished in its value.

This need to preserve historical context from average people is exemplified in the quote from Jean-Philippe Legois, president of the Association of French Archivists, who stated: “Today, e-mail, Facebook, Twitter — this is the correspondence of the 21st century…If we want to understand the society of today in the future, we have to keep certain traces.”

Threading the needle will be difficult

We are still pretty far off from anything becoming law. The EU already has about 4,000 amendments to the proposed law under consideration, and the lobbying on every aspect of it, including the “right to be forgotten” proposals has been intense, including wrangling over the terms and conditions of user consent. In short, this could go on for years.

The good news is that there seems to be recognition that there are some things that are important to keep for economic and historical value, and there are things individuals should be allowed to delete from being accessed ever again.

As somebody who has dealt with numerous requests to eliminate defamatory or incorrect content, I know first-hand the challenges. For example, several months ago an individual contacted me because they were applying for a job in a certain profession and there was an old article on our site that a Google search on their name brought up on the first page. It referred to a court action where this individual had been accused of something quite severe, and subsequently the case was thrown out because they had been wrongfully accused, all charges were dismissed and plaintiffs in fact were forced to pay for having wrongfully brought the action. Unfortunately, because there never was a follow-up item on the case being dismissed, potential employers only would see the original lawsuit. This person had tracked down all of the places it had been listed and ours was the last link. I removed the article.

I bring this up because of the numerous instances where this kind of thing can arise. We should have the ability to, in effect, have some control over our public profile. However, as somebody who also did much of my undergraduate work using primary source materials in the form of diaries from 15th century England, I am very sensitive to the archivist concerns, especially since it is not clear who might be setting the rules of the road on what can or cannot be considered ours versus being an important part of the commons.  

All of this is not only the subject of EU legislative interest, but also is being tested in a closely watched court case in Spain, as the article points out. For obvious reasons the online industry is not enthusiastic about the curtailment of its ability to capture and then monetize what they know about us and are willing bedfellows with the archivists on voicing their concerns about any further restrictions.  

The New York Times, for example, quotes a blog by William Echikson, Google’s head of free expression for Europe, who stated,  “Search engines should not be subject to censorship of legitimate content for the sake of privacy — or for any other reason.”  

Various compromises are in the works, but what finally emerges, if anything, remains anyone’s guess. 

I fully appreciate Legois and his desire to stand up for the little guy, and liked his closing quote from German philosopher Walter Benjamin: “It is more arduous to honor the history of the nameless than that of the renowned,” the philosopher wrote. “Historical reconstruction is devoted to the memory of the nameless.”  

However, the digital age is different, along with being disruptive. As a little guy, I for one also happen to believe that I should have the right to be able to delete information that for, good reason, I believe is inaccurate and/or could be detrimental to my career or my personal relationships. Indeed, we all have made our share of missteps in the past that do not need to be part of the communal record and were should be able to have peace of mind that at our direction they will RIP.

The wisdom of Solomon is going to be needed here. It will be fascinating to see if the EU can thread the needle on “the right to be forgotten.”




Edited by Alisen Downey
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