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The right to be forgotten

8 July 2014

There has been increasing discussion of “the right to be forgotten” in various quarters, though you will not find it in the Universal Declaration of Human Rights. I’m not sure where the phrase originated, but it seems to be spreading quite rapidly, and just to make sure we don’t forget it, we were reminded of it in a recent article in the Mail & Guardian, Google and the right to be forgotten:

On May 13, the Court of Justice of the European Union (ECJ), the highest court in the EU, ruled in favour of Costeja González and against Google. González asked the search engine giant to remove some unflattering links from the results that appeared when anyone searched for his name. Google refused, and so he took the company to court.

We can all sympathise with González. When his home was repossessed in 1998, a notice appeared in a local paper and on its website. Most people would want to forget such an unpleasant and embarrassing event as soon as possible. But Google’s results continued to remind the world of the repossession more than a decade later.

With its ruling, the ECJ effectively created a new legal right – the right to be forgotten. Since the ruling, tens of thousands of requests for removals have been pouring into the system that Google built for their handling. But the current solution is both deeply problematic and impractical.

Regardless of the merits of the Google case referred to, I think the term “the right to be forgotten” is a singularly unfortunate one, because if such a right really existed, it would be the right to end all rights. If taken literally, it could mean the end of all history.

In the Orthodox Church, when someone dies, we say “May his memory be eternal.” It is part of our humanity to remember people. There is no such thing as a “right” to be forgotten, and if people want to invent such a right, will they develop a device to wipe the memories of all those who might remember them? If so, tampering with other people’s memories would be the biggest violation of human rights of all. And saying that people have a “right” to be forgotten implies that they therefore have a right to tamper with other people’s memories.

I find it hard to believe that the European Court of Human Rights intended to create such a right in the Conzalez case or any other. Whatever right they may have created, I don’t think it was the right to be forgotten.

But perhaps this is just wishful thinking on my part, because according to no less an authority than The Stanford Law Review that is precisely what they did intend to create: The Right to Be Forgotten – Stanford Law Review:

…the European Commissioner for Justice, Fundamental Rights, and Citizenship, Viviane Reding, announced the European Commission’s proposal to create a sweeping new privacy right—the “right to be forgotten.” The right, which has been hotly debated in Europe for the past few years, has finally been codified as part of a broad new proposed data protection regulation.

If we are to take that at face value, and there is nothing to suggest that Viviane Reding did not intend us to take it at face value, then if someone would not or could not forget someone who wanted to be forgotten, the European Court of Human Rights could order them to have a lobotomy or other brain surgery until the memory was excised, because that is what the phrase “the right to be forgotten” implies. If that is not what Viviane Reding or the European Human Rights Commission intended, then they should not use that phrase. Perhaps they should cloak it in a more vague and comforting form of words like “final solution”.

There are, for example, people who say that we should forget how bad apartheid was, and move on. Should the history of that period be excised from the history books because some people, especially those who connived at it, prefer to forget it?

When I read about the Gonzales case, I can sympathise, and say yes, there is a problem. But the problem is not one that can be solved by creating a spurious right that will erase history from public memory. And I doubt very much that Gonzales really wants to be forgotten. Does he want to be buried in an unmarked grave, where the grave-diggers are killed immediately afterwards to prevent them from ever disclosing its location? Because that is what the term “the right to be forgotten” implies.

No, I am sure that what Gonzalez wants is not to be forgotten, but not to have his face perpetually rubbed in one incident from his past as if that was the most significant thing about him. I think that that is a not unreasonable desire, but it is not “the right to be forgotten”. If that is the kind of problem that the European Commission for Human Rights is hoping to solve, then creating a “right to be forgotten” is using a proverbial steamroller to crack a walnut.

The right to be forgotten is thoroughly evil, and the sooner we forget about it, the better.


5 Comments leave one →
  1. 8 July 2014 7:01 pm

    The overall philosophical right to be forgotten aside, and you agree that’s not what Gonzalez really wants, should there be limits to the ability to publicize things via the internet? If someone was involved in a legal case where the judge put a complete gag order because of the privacy rights of the individual, should internet/media outlets outside the jurisdiction of that judge circumvent the order and publish what they want to publish anyway?

  2. Irulan permalink
    9 July 2014 9:00 am

    Aside from your main point which is well taken, I have no problem with being buried in an unmarked grave.

    If one has little choice in coming to exist, one must have fundamental reasons for obliterating the record.

    • 9 July 2014 10:45 am

      I think of all the cases that the Truth and Reconciliation Commission investigated of people who were buried in unmarked graves, all traces of whom had been obliterated, and the distress of their relatives. There is not, and cannot be a “right to be forgotten”.

      If there is a “right” to be forgotten, then the Truth and Reconciliation Commission, which was set up to investigate and find the truth about gross violations of human rights, would itself be a gross violation of human rights. That is why “the right to be forgotten” is the right to end all rights.

      If the ECJ does not intend those words to be taken at face value, then they should not use those words, and nor should the media use those words when writing about such things.

      • Irulan permalink
        9 July 2014 11:04 am

        Your concern for the historical account is pertinent: everyone has a social footprint that must survive.

        Existentially speaking, however, does one not have the ‘right’ to not exist? Isn’t this what the Buddhist looks forward to?

        The Christian hope is of course substantially different!

  3. 16 July 2014 3:40 pm

    Google is a search engine, I believe they shared a link to a website that hosted the embarrassing incident. So shouldn’t his complaint be with the hosting site? I also know Google does keep old versions of websites in its cache and if that was the case, I also don’t want embarrassing details of my life forever kept in cyberspace long after the are newsworthy…

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