Should Historians Be Worried that Europeans Now Have “The Right to Be Forgotten” ?

As readers probably have heard, the European Parliament issued regulations in March about online data management that guaranteed Europeans a “right to be forgotten,” and then last month the International Court of Justice ruled against Google based on that regulation. Do these decisions have any implications for historians?

First the background. Europeans have been concerned about the control over information for a long time, for reasons ranging from concealing historical atrocities and recent crimes by politicians to the exposures of intelligence-gathering by U.S. agencies. After years of debate, the European Parliament in March 2014 issued new rules for computer data, based on four “pillars” that included uniformity of rules for member states and foreign companies working in the EU.

But the third pillar attributed to individuals in the EU a “right to be forgotten.” Written in abstract and generalized terms, this rule allows a “data subject” – a person written about in a website or found on a web search – to demand that “data controllers” – including search engines – remove references to that person that are go beyond what is necessary or are no longer relevant or necessary for the purpose for which the data was published. The right to be forgotten is Article 17 of the regulations: http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf .

A European Commission Memo of 12 March 2014 explained that this right was based on existing rules, and was meant to “empower EU citizens, particularly teenagers, to be in control of their own identity online.” The Memo emphasized that “the right to be forgotten is not an absolute right,” acknowledging the existence of legitimate reasons to retain data in such locales as newspaper archives. The Memo also explicitly stated that this right “cannot amount to a right to re-write or erase history” or “take precedence over freedom of expression or freedom of the media.” While the EU Parliament agreed with all of these provisions, it still held that when a court or regulatory agency approved it, an individual could demand elimination of links that the individual no longer wishes to be accessible.

While this rule raised concerns in the EU and the US especially, the situation became much more serious in late May 2014 when the European Court of Justice settled a lawsuit by a Spanish lawyer, Mario Costeja Gonzales, against Google Spain. Costeja found that every time he searched for himself on Google, the record appeared of an old and long-since settled bankruptcy debt in 1998 from a Spanish newspaper. Costeja appealed to the Spanish Data Protection Agency (about which more below), which sued both that newspaper and Google, asking Google to stop posting this information in response to searches for Costeja. This lawsuit reached the ECJ, which found in favor of Costeja in the Google portion of the case and ordered Google Spain to remove those links in searches for Costeja. The court phrased the rule in terms of the right to be forgotten.

The ECJ decision was the first concrete implementation of the principle of the right to be forgotten after the EU rules issued in March. It was followed by a remarkable series of events and divergent views.

Early on, it appeared that this right to be forgotten would be abused. Within a few days of the decision, more than 40,000 Europeans sent demands to Google to change their web search listings. The BBC investigated and found that more than half of the applicants from the UK involved convicted criminals, while others included a politician who “behaved badly,” a doctor and a business that had negative reviews on websites, an actor who had an affair, and a university instructor who was suspended, all of whom wanted these negative stories erased from searches. A statement from Google after the ECJ decision noted that the firm “often receives fraudulent removal requests from people impersonating others, trying to harm competitors, or improperly seeking to suppress legal information.”

Google officials said that they would balance requests for removal of links against public interest in information about “financial scams, professional malpractice, criminal convictions or public conduct of government officials” in evaluating requests. But Jo Best of ZDNET and other commentators have questioned whether Google should have the responsibility of judging the merits of these numerous appeals to be forgotten.

The EU established a committee to work out rules to implement the decision, but this could take months, while tens of thousands of cases continue to accumulate. Certainly everyone involved in evaluating these requests will use Google among other search engines to verify these requests and expose fraud. What could happen if this right to be forgotten is implemented so extensively that it becomes impossible to expose fraud because so many individuals’ stories have been “erased”?

The UK’s Information Commission Office argued that the right to be forgotten leaves “space to strike a balance between the right to privacy and the public’s right to know.” But this balance will be hard to achieve.

Eric Posner, a professor of law at the University of Chicago, praised the ECJ decision as a victory for privacy rights that the US should emulate. He rejected concerns over censorship, arguing that this would only occur “if European courts go overboard,” and described the decision as setting the right balance between privacy and public information. Posner’s argument matches widespread views among Europeans supporting privacy rights.

But most opinions expressed in U.S., Britiain and elsewhere are highly critical of the “right to be forgotten” and anticipate that it will cause restrictions on free speech and public information. Jeffrey Rosen, a professor of law at George Washington University, writing in the Stanford Law Review, viewed the right to be forgotten as “the biggest threat to free speech on the Internet in the coming decade,” and warned that it would result in a much less free internet.

Google’s top executives argued that the decision set the wrong balance between these two rights, thereby disagreeing emphatically with Posner. Jimmy Wales, the head of Wikipedia, dismissed the right to be forgotten as absolutely “censorship.” Meanwhile, Google’s competitor search engine from Microsoft, Bing, has begun preparing for requests to be forgotten under the ruling.

Even the European Union’s Advocate General, Niilo Jääskinen in 2013 recommended that the ECJ reject the right to be forgotten because “it would entail sacrificing pivotal rights such as freedom of expression and information” and because of the difficulties companies would have in making decisions over removal of links.

Beyond these disputes over the immediate effects of the regulation and court ruling over the right to be forgotten, several commentators have tried to draw out the implications of these events for historical knowledge.

The New Yorker published a revealing post by Jonathan Blitzer reporting that behind Costeja’s case are hundreds of similar cases in Spanish courts seeking similar changes. Blitzer places these in the context of post-Franco Spain, in which conservatives have tried, in many cases successfully, to prevent the exposure of atrocities of the Franco era in the media and education. While Blitzer does not connect Costeja with Franco, he does emphasize that Spanish politics has created a “culture of forgetting” similar to Costeja’s demands.

Several other commentators have warned that the implementation of the right to forget could lead to concealment or suppression, and the “forgetting” of history. In addition to Spain, many countries confronting their traumatic pasts have witnessed conflicts over remembering and forgetting. Examples include truth and reconciliation commissions in South Africa and Sierra Leone, the disputes between Japan, South Korea, and China over the character and commemoration of the Nanjing Massacre and other Japanese atrocities, and the issue of the “disappeared” in Chile and Argentina. Historians and others who have witnessed or studied these conflicts argue that the EU’s right to be forgotten could lead to cover-ups of history.

An article by the Committee to Protect Journalists warns that the right to be forgotten “will corrupt history.” It cites Peter Noorlander, legal director of the Media Legal Defence Initiative, anticipating that corrupt politicians could use the law to “cleanse their history” and conceal scandals. In Spain (again), the government in 2012 tried (but failed) to ban photographs of police after police violence there became international news. But a French court banned a photojournalist’s book because it had one image of a young gang member brandishing weapons; the gang member had reformed and did not want his picture publicized. The Committee described the right to be forgotten as Orwellian because it fit with Orwell’s warning that “who controls the past controls the future; who controls the present controls the past.”

Mark Stephens writes in the Guardian that because it is highly unworkable for intermediaries like Google to determine what information is in the public interest, the people most likely to be able to influence these decisions will be those with the resources to pressure Google, mainly “political and business elites.” Stephens anticipates that politicians will now be able to “curate” their search results to limit them to “flattering information.”

From another side, however, Victor Mayer-Schönberger, a professor of internet governance at Oxford, and the author of Delete: The Virtue of Forgetting in the Digital Age, argues that the internet’s “comprehensive digital remembering” puts people in a “straitjacket of the past” that they cannot escape. A Google search (or presumably a search in any other search engine) produces “a mosaic of information” and creates “an image that is both incomplete and strangely devoid of time.” He argues that forgetting is linked to forgiving, and that if we cannot forget we can misjudge people and become “an unforgiving society.”

Whatever the virtues or risks of a right to be forgotten, it seems to me that worries that its implementation will undermine history are greatly exaggerated, for the following reasons:

1. If small numbers of people apply and win application of this right to particular Google searches, it seems unlikely that their victories will affect history. If on the other hand hundreds of thousands or millions of people apply to Google and the EU to have their pasts forgotten, and a big backlog develops, it may become too difficult to implement the right. The EU may have to backtrack, and ordinary people without substantial assets and time may simply give up trying to change their search records.

2. The text of the rule and related commentary emphasize that it will not apply to public figures or politically important “relevant” information. The main concern of the rule was children who post embarrassing materials that they then decide as adults that they want to have removed. If it turns out that a substantial portion of the applicants to be forgotten include people with criminal records, as the evidence from the UK suggests may occur, this pattern will undermine the validity of the right. This could bring the right to be forgotten into conflict with public rights regarding crime and corruption, and give private and public agencies charged with implementing the right to be forgotten an easy basis for rejecting applicants. This in turn could lead to court cases and delay the process even more, again leading many people to simply give up.

3. The target of this rule, so far, has been Google. By focusing on Google as a “data controller,” the European Parliament selected an easy target that evades issues of civil rights and public information. Costeja’s lawsuit aimed at both Google and the newspaper, but the ECJ approved only the suit against Google and rejected the suit against the newspaper that published the report of Costeja’s bankruptcy in 1998, since as a newspaper of record it had the right to publish this information.

4. Even if Google and other search engines remove links that people request, in principle researchers could still find the information through a well-targeted search. Technical specialists on the internet argue that any information that has to be “forgotten” in certain Google searches can still be found in other ways.

5. All of these issues could have been avoided by invoking existing laws and software techniques. Some countries give different groups, such as children or ex-convicts, rights to have their records suppressed. Also there are companies specializing in Search Engine Optimization and Reputation Management that can manipulate or “game” Google and other search engines to determine the order in which links appear in web search pages. This can be done without resorting to much more expensive lawsuits or waiting in line with tens of thousands of other applicants for the EU to establish its rules.

6. Some people with records of malfeasance that reach into the realm of history, such as perpetrators of government atrocities, may try to use the right to be forgotten to have Google stop linking them to the atrocities, and it is possible that an overworked committee might accidentally authorize such a case. But the publicity associated with this new regulation and the ECJ lawsuit decision will heighten the awareness of journalists and researchers. If even one such “accident” is discovered, it could lead to significant outcry and criticism. These in turn could lead in turn to the EU and Google playing down the whole process with strict limitations for applications to be forgotten, or even quietly abandoning it.

7. At least to some extent, the EU’s issuance of these regulations reflects popular desires for privacy among Europeans. While historians, journalists, and other researchers are committed to exposing hidden truths, we should also take a lesson from this incident to be more sensitive to privacy concerns especially on issues that are not of major historical or political significance. The right to be forgotten may include Viktor Mayer-Schönberger’s point about the need to be forgiven. Historians in some fields have argued that “the personal is political,” but sometimes we may need to respect more the privacy concerns of the people whose “personal” is at issue.

I do not know whether Costeja tried to use Reputation Management to alter his search record before he resorted to a lawsuit. But maybe Costeja sued Google with the goal of making this a test case. The result has been, of course, that now many more people know about his bankruptcy and other personal data than ever before, they have now become part of the global history of the internet, and at this point he may just want to forget the whole thing.