The Right to be Forgotten

By Daniel Kulas

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The internet contains a tremendous wealth of knowledge, fun, entertainment and more.  One could spend hours (and I have) aimlessly driving along the internet highway, reading this and liking that, without a care in the world.  The internet will allow anyone the freedom to learn, explore and become a part of the world community.  What the internet is not so great at doing is hiding information (or purging it all together).  “Before the digital age, if I did something young and foolish, when I was young and foolish, people forgot about it as I matured.  While the details might exist somewhere in a paper archive, you needed some effort and motivation to dig them up.  Contrast that to today: All the information that once would have been generally forgotten over time – and likely is really no longer relevant to who I am now – is available with a few clicks of a mouse (John Simpson).”  Now, with a little computer-savvy, the power of keywords and the Wayne Gretzky of search engines readily available (Google), all you have to do is hit ‘Enter’ and you can find just about anything.  Increasingly, though, over the last couple of years, there have been cries for privacy on the internet and this idea of a human right “to be forgotten.”  What do I mean when I say “the right to be forgotten?”  We will find out in the following paragraphs, among other interesting facets that go along with this topic.

Google’s bread-and-butter is search.  By indexing millions and millions (and even more hundreds of millions) of websites and links, all of the time, Google is able to provide a search engine capable of uncovering just about anything, all you have to do is ask.  As I mentioned earlier, there is this increasing idea that people should have a “right to be forgotten” and this is what I mean:  Let’s say a local newspaper writes an article about you (you’re running for city council) and brings up facts about your past (unsavory but true) and runs the article.  This is where the right to be forgotten comes in.  Said-person will likely want that article removed from publication so as not to hurt their chances at the city council position (or maybe they really just want it taken down, for whatever reasons) but that won’t happen (thanks First Amendment!) so the next best thing is to ask Google to do some house-cleaning and remove any and all links from their search engine results that would point to that article.  If information is part of the public domain, obtained lawfully and written about truthfully, what logical reason is there to ever have it removed from the public domain?

The question then becomes, should this even be a ‘right’ to begin with?  I would argue ‘no’ and so would others.  “Such a broad legal ‘right to be forgotten’ could never fly here.  U.S. law, of course, provides legal recourse against falsehoods that are damaging.  But as to truthful speech, other than gross invasions of privacy, actual threats and copyright infringement, the First Amendment does not allow legal censorship (Jules Polonetsky and Christopher Wolf).”  And that is precisely what individuals are trying to accomplish when their name shows up in an article, blog post, editorial, what have you, that they don’t like (regardless if it is unequivocally true).  In addition, Martin Abrams thinks it’s ‘absurd’ to say we have a right to be forgotten from the public domain.  Again, I say ‘no’ because there is no plausible reason to scrub information from the public record that is truthful.  All this does is set a dangerous precedent, dangerous because it directly affects the work and lives of journalist, writers, editors, publishers, reporters, on-line news publications (the list goes on) and secondly (and most importantly) it allows individuals to suppress free speech and expression and to decide when certain constitutional rights fit their personal needs and when they don’t, discarding them like cards in a game of go-fish.

The origins of this issue can be traced back to Spain.  In 2009, a man by the name of Mario Costeja Gonzalez requested that articles about his personal debt be removed from the public record since he had (between that time and now) gotten his finances in order and is no longer in debt.  In addition, the paper reported that he was married, when in fact he had been divorced for some time.  After five years of waging legal battles against Spain’s highest court, in November of 2014 a decision was handed down that awarded Mario on his request to be forgotten. “The ruling says that Google and other search engines must remove data from past results if requested to do so by a member of the public (Ashifa Kassam).”  This has “led to a heated debate in Europe about the balance between privacy and the freedom of information in Europe, where citizens enjoy some of the world’s strictest data protection laws (Vincent West).”  “The consequences of the Court’s decision are just beginning to be understood.  Google has fielded about a hundred and twenty thousand (and growing) requests for deletions and granted roughly half of them.  Other search engines that provide service in Europe, like Microsoft’s Bing, have set up similar systems.  Public reaction to the decision, especially in the United States and Great Britain, has been largely critical.  An editorial in the New York Times declared the it ‘could undermine press freedoms and freedom of speech.’  The risk, according to the Times and others, is that aggrieved individuals could use the decision to hide or suppress information of public importance…A recent report by a committee of the House of Lords called the decision ‘misguided in principle and unworkable in practice’ (Jeffrey Toobin).”  Jules Polonetsky from the Future of Privacy think-tank in Washington, went even further by saying, “The decision will go down in history as one the most significant mistakes that Court has ever made.  It gives very little value to free expression.  If a particular website is doing something illegal, that should be stopped and Google shouldn’t link to it.  But for the Court to outsource to Google complicated case-specific decisions about whether to publish or suppress something is wrong.  Requiring Google to be a court of philosopher kings shows a real lack of understanding about how this will play out in reality (Jules Polonetsky / Jeffrey Toobin).”  Legal precedents like this can have a ripple (and crippling) effect/affect across the world.  “Many countries are now starting to say that they want rules for the internet that respond to their own local laws.  It marks the beginning of the end of the global internet, where everyone has access to the same information, and the beginning of an internet where there are national networks, where decisions by governments dictate which information people get access to.  The internet as a whole is being Balkanized, and Europeans are going to have a very different access to information than we have (Jennifer Granick).”  Of course this happens (and has been for some time) already in countries like China, Russia, North Korea, and so on.  While those are examples of some of the most repressive regimes in modern history, they are examples of how the internet (in general) is being controlled, watched, censored and regulated.

Now, oftentimes, as people grow and mature, the details of their past are rarely connected to the person they are today, but sometimes, people find themselves in position of becoming a leader in some capacity (president of a company, a collegiate basketball coach and anything in between).  When those days come, the details of your past immediately become relevant, especially when vetting candidates for the position in question.  How can you perform a thorough background-check on someone when the information that was once readily available, is no longer so?  And that isn’t even the main issue, the main issue is about lawful access to public information.  The opposite of that is censorship, which is exactly what some people are asking for.  Censorship of free speech, to be precise.  If you’ve never read the book ‘1984’ by George Orwell I highly recommend it.  The topics explored in that book are incredibly relevant to this article and the idea of the ongoing discussion about sacrificing privacy for security.  “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety (Benjamin Franklin).”  The sacrifices we make in terms of our liberties, in the name of national security, is worrisome at least and terrifying at most. “The American regard for freedom of speech, reflected in the First Amendment, guarantees that the Costeja judgment would never pass muster under U.S. law.  The Costeja records were public, and they were reported correctly by the newspaper at the time; constitutionally, the press has a nearly absolute right to publish accurate, lawful information (Jeffrey Toobin).”

This saga of privacy and the internet will continue to play out for years (maybe decades) to come.  With the continuing proliferation of information and the growing numbers of channels used to access that information, I’m not so sure there is a “balance” to be struck between the people who say it should be a right and those who say nay.  As I mentioned earlier, there are lawful mechanisms in place in our society that protect individuals from slanderous speech or libel.  Just because all of the sudden you want to ‘go dark’ and every detail of you to be scrubbed from the internet doesn’t mean it should be so. 

If you don’t want a Facebook or Twitter post to haunt you years down the line, think before you post it.  If you don’t want to be written about in unflattering ways, don’t be an idiot in public.  If any of the above doesn’t work for you, you can always try holding yourself accountable to your actions.