Tag Archives: ECJ

Documenting history and why we don’t have a right to be forgotten

It is reassuring that the UK’s Telegraph (see for instance the Telegraph) is maintaining in its pages the stories that Google is removing from seach.

What a right to be forgotten looks like.

What a right to be forgotten looks like.

The European Court of Justice’s illiberal ruling has reminded us that the digital media are in the end ephemeral, easily deleted and perhaps unreliable. The hard copy newspapers are proving themselves what we had forgotten they were — a way of archiving history. If digital storage becomes so corrupted by selective amnesia caused by deletion of links to stories, it will prove unreliable in the end, and undermine the whole point of search.

In that respect, the ECJ’s ruling is regretfully Luddite. It assumes that a right to be forgotten really makes sense. We can instead still hunt through back copies of hard copy journals, newspapers and pamphlets and see both the good, the bad and the ugly of history. Efforts to redraft the historical record by authoritarian regimes now appear to pale when compared to the ECJ’s ruling.

Clearly, there really is no right to be forgotten, otherwise editors and librarians would be far too busy with their physical scissors cutting out references to people and events from their collections. And we all know what history looks like when regimes do that.

There is a view called ‘internet exceptionalism’, that the internet changes everything, and in many respects it has, but we cannot define our fundamental rights solely on the contingent features of a particular technology. I have experience with this in terms of public access to health information over the internet. There have been efforts to censor false and misleading information on the internet, without also noting that much of that same information is available in hard copy in libraries, and bookstores. The spread of ill-informed medical opinions on internet chat rooms is hardly a reason to censor content any more than the state should eavesdrop on private conversations in case someone gives inaccurate medical advice. The world just doesn’t work like that and freedom won’t permit it.

There is another view, ‘technological agnosticism’, that says that we should not construct laws in such a way that they depend on a particular technology which can change, rendering the law meaningless or hard to enforce.  In terms of access to health information, since patients can buy books in bookstores that are just as unreliable as information on the internet, why pick on the internet when the problem lies elsewhere.  The key is to focus not on what the technology does but whether what is perceived to be the problem can be solved without specific reference to the technology. This cannot be done ‘forgetting’, hence there can be no right to enforce it without crossing the line into censorship — and there is no way to square the circle when it comes to censorship.

Unfortunately, we now have a silly ruling that seeks to treat the internet exceptionally, and in an uninformed way.  Indexed library holdings or the table of contents of a newspaper archive not subject to that ruling since putting the index online should not cause that information suddenly to be censorable and in and of itself create a right to be forgotten. But, that appears to be the consequences of the ECJ’s illogic.

So, thank goodness there still exists hard copies of things and that the legitimate press are working to protect access to these stories. As they say, what goes around comes around. If people find that digital archives are being selectively censored, they will lose their value, and with that will come the loss of confidence in the new media, itself. The snake devours itself.

Time to pick up my copy of today’s paper.