To Forgive or Forget

This article originally appeared in The Daily Journal in May 2014. 

Forgetting is often not easy, and forgiveness is even more difficult, but both are fundamental parts of being human. In today’s always on, always connected world, both forgetting and forgiving are made more challenging by ever present reminders of past encounters, updates from acquaintances, and haunting old high school pictures suddenly appearing under the heading of #tbt.

Last week, the Court of Justice of the European Union decided that Google should be forced to help us with the forgetting part. In a controversial ruling, the Court stated that an individual should have the right to require a search engine to stop returning results about them if requested, even if the results report true information. Yes, Europeans now have the “right to be forgotten.”

On first blush, this may seem like a win for privacy — all of us certainly would love to be able to erase things from our past — but the ruling is far more likely to have negative repercussions on free speech. Now, search engines will be tasked with judging what facts should be deleted from history and which are of sufficient public importance to be made available.

It’s difficult to view this ruling as anything other than prioritizing privacy over free expression.

It’s difficult to view this ruling as anything other than prioritizing privacy over free expression. Essentially, the Court decided that an individual’s right to privacy trumps everyone else’s rights to access information and to offer commentary. The court laid out a number of factors that should be considered when a search engine receives a request to suppress search results, but these factors are subjective and are frankly not judgments a company would be equipped to handle. Should Google determine if someone is a public figure or not, or whether something is too old to be relevant? I’d rather we have this already publicly available information accessible and be able to make the decisions ourselves.

Beyond this, the requirement for search engines to edit out content from search results will be incredibly challenging for companies to manage, and the outcome will likely be one that favors removing content without question. The incentives for opposing a removal request would be extremely low, whereas failure to remove links to content could result in costly lawsuits. This balance clearly tips in favor of suppressing links, and it’s not surprising to see that a disgraced former politician and an individual convicted of sex crimes have jumped at the chance to request their right to be forgotten.

Ultimately, we should be allowed to make the decision if, based on publicly available information, someone should be forgiven for past misdeeds.

There may be good reasons that people’s pasts shouldn’t factor into their present, but there may also be good reason that we should know if someone running for office misused public funds or if someone seeking employment has a criminal record. Ultimately, we should be allowed to make the decision if, based on publicly available information, someone should be forgiven for past misdeeds.

In America at least, we have demonstrated an uncanny ability to forgive. We love a good comeback. Bill Clinton is mostly revered as a statesman, and Rush Limbaugh still has a radio program. We also welcome and allow for dramatic life pivots as evidenced by Madonna’s many iterations and Ronald Reagan’s rise to the presidency. In many ways, it’s the complete picture of people that make them compelling. With Europe’s right to be forgotten there’s a good chance we may only get to see the sterile, self-calibrated version of people.

Even more frightening than sanitized profiles of celebrities or politicians is the potential this ruling creates for revised or incomplete versions of history. Does the right to be forgotten allow someone to remove themselves from a horrific historical event, such as genocide or the suppression of human rights? Should search engines be forced to show only the sanctioned versions of history as well? This impulse toward revisionist history – and use of Internet censorship to achieve it – is characteristic of authoritarian regimes. This should not be where the European privacy debate leads us.

The Internet has thrived because it has brought people around the world more freedom and promoted equality in voice. Without question the Internet has made it easier to find information about people – the good and the bad – but information is power, and we should embrace easier, more equitable access. Instead, the European Court has taken some power away from the mass populace and given it to the few: It’s highly likely that those who exercise their newfound right to be forgotten will be those with the most power to lose, rather than those just hoping for a second chance, a fair mortgage rate, or their first job. In fact, those who could most likely benefit from the privacy gains of the ruling are those who are the most unlikely to know they should use it, or have the leverage to pursue their claims.

We need to strike a much better balance between our right to privacy and our right to free expression.

We need to strike a much better balance between our right to privacy and our right to free expression. There is certainly information that is publicly available that should not be factored into decisions, and in the US we have developed laws that create these parameters. The Fair Credit and Reporting Act clearly states what information can and cannot be used when making credit decisions. It offers a reasonable model for how we must consider relevant information, as opposed to allowing individuals to force the removal of factual information.

Now, search engines are forced to judge who and what should be forgotten, but because of the vague language from the court’s ruling, other kinds of platforms, such as Facebook, Twitter, Reddit, and even Wikipedia, should brace themselves to be in this unenviable position as well. And with so many different data authorities in Europe that will independently apply the ruling, there’s a good chance that Europeans in different countries will experience vastly different Internets.

Ultimately, we need to decide what price we are willing to pay for the right of individuals to be forgotten. As norms change, those pictures of college parties or rants in a blog from 20 years ago are less likely to be held against us. However, if Europe’s well-intentioned but poorly reasoned right to be forgotten catches on in the US or other places, our ability to make decisions about what should be forgiven will be taken away. There are huge societal benefits to remembering the past. In Europe, we are witnessing the unfortunate closing of the public record. Let’s not make the same mistake here.

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