On Tuesday, the European Union’s Court of Justice ruled that “individuals can request that search engines remove links to news articles, court judgments and other documents in search results for their name.  National authorities can force the search engines to comply if they judge there isn’t a sufficient public interest in the information” (Frances Robinson, Sam Schechner and Amir Mizroch, “EU Orders Google to Let Users Erase Past,” Wall Street Journal).  American critics of the decision are crying foul on the basis of freedom of speech, while European defenders of the decision rest their argument on the concept of “the right to be forgotten.”

Although no specific enforcement was established, the EU decision suggests that old and irrelevant information should be removed from search engine results if the party mentioned so requests.  Needless to say, there will be years of litigation over this issue to address questions such as:

  1. What qualifies as old and irrelevant?
  2. What judicial body had authority over the Internet?
  3. Who bears the cost of removing content from search engine results?
  4. Who has the authority to request takedown, and does that authority ever expire?

You can look all the back to the Zenger case in colonial times for a precedent on the American idea that freedom of the press is based on the accuracy of information, not whether or not it’s complimentary.  And the U.S. Supreme Court reaffirmed this in a 1989 decision that states cannot pass laws restricting the media from publishing truthful information — even if it’s embarrassing — as long as the information was legally acquired (Jeffrey Rosen, “The Right To Be Forgotten,” Stanford Law Review Online [February 13, 2012]).

But while this recent EU decision is being debated as an American vs. European point of view, there is evidence to suggest that not all Americans are unequivocally committed to defending freedom of speech.  Viktor Mayer-Schönberger, professor of internet governance at the Oxford Internet Institute, cited a 2011 survey conducted at the University of Berkeley that showed that the vast majority of Americans — in all age groups — advocate for an “expiration date” for digital data.  Think Snapchat but on a broader scale.  Here is how Mayer-Schönberger justifies his position:

“digital memories will only remind us of the failures of our past, so that we have no ability to forget or reconstruct our past.  Knowledge is based on forgetting.  If we want to abstract things we need to forget the details to be able to see the forest and not the trees.  If you have digital memories, you can only see the trees.” (Kate Connolly, “Right to erasure protects people’s freedom to forget the past, says expert,” The Guardian [April 4, 2013])

A blogger for Forbes pointed out another curious inconsistency this week.  “It’s ironic that the flashpoint is the ‘right to be forgotten,’ since the U.S. for most of its existence has been a place where people come to put the past behind them.  The country’s strong protections against political persecution and liberal bankruptcy laws to allow them to escape crushing debts both served as powerful magnets for immigrants seeking escape” (Daniel Fisher, “Europe’s ‘Right To Be Forgotten’ Clashes With U.S. Right To Know,” [May 16, 2014]).

An editorial in PC Magazine this week identified a worst case scenario based on this decision: “This will create a vigilante class who will exploit the system to ban pages they do not particularly like. . . .  Voices that need to be heard will not be heard.”  While he proposed a solution that could prevent this sort of whitewashing, he also acknowledged that Google is not likely to take this more expensive route (John C. Dvorak, “The EU’s’ Google Decision Destroys Search,” [May 14, 2014]).

As an archivist, I’m a fan of the “old,” and I also recognize that what appears irrelevant to one person may be deemed remarkably relevant by another.  Archives have certainly been faced with takedown requests themselves, when people or their heirs contest the online publication of archival materials that are not in the public domain.  But at the end of the day, I don’t think this case is primarily about privacy or freedom of speech — for me, it boils down to the issue of consequences.  I’m not a fear-mongering person, but I have been concerned that the anonymity and physical distance that the Internet allows can create a frame of mind where users believe that they can “speak” without repercussion.  So while we can’t legislate a sense of morality that would prevent teenagers from harassing their peers in social media to the point of suicide, perhaps we can maintain a modicum of consequences if we don’t allow people’s digital “actions” to be deleted.

 

 

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