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The Internet never forgets, unless the law forces it to

When I worked as a campus newspaper faculty advisor several years ago, a recent graduate once asked if we could remove an article about dating from the newspaper’s website because it was ruining his chances at romance. The graduate had been quoted, some years earlier, trying to make a joke about relationships, but the line came across in an unflattering way. He told us that whenever he met a new person he wanted to date, she Googled him and the news article invariably came up near the top of search results. He had decided that the article was going to prevent him from ever getting married.

Although the case might seem trite, I could feel how serious it was for this graduate. The newspaper staff debated what to do about information that was once true, but might have become outdated. The debate pitted free expression and historical truth arguments, on the one hand, versus the case for restored privacy and the right to control one’s own identity, on the other.

A similar debate is now playing out in legislative and judicial bodies around the world, under the catchy but perhaps misleading title of “the right to be forgotten.” Most prominently, this right has been endorsed by the European Union’s highest court, the European Court of Justice, and has been further ensconced in European Union law in a forthcoming 2018 rule known as the General Data Protection Regulation.

In May 2014, the EU Court of Justice issued a decision in favor of the right to be forgotten that took observers by surprise because it went against a recommendation from the Court’s own Advocate General. The case involved a Spaniard named Mario Costeja González who argued that published notices of his past debts violated his rights under a 1995 European Data Protection Directive. The Directive required data controllers to ensure their use of personal information was “adequate, relevant and not excessive” and to allow individuals to rectify, erase, or block uses of data about themselves that were inaccurate or incomplete.

The Court did not require the Spanish newspaper La Vanguardia to delete the legal notices, but the Court did require Google to prevent the links from showing up in European search-engine results for the man’s name. Ironically, Costeja González and his debts have become known worldwide, in an illustration of what has been called the “Streisand effect” phenomenon (where attempts to hide information leads to even greater exposure of that information). This phenomenon is named for the American actress Barbra Streisand, who attempted to suppress aerial photos of her mansion on the California coast but ended up drawing widespread attention to them in the process.

In reality, not even the General Data Protection Regulation can guarantee that things once posted online will be entirely forgotten.

The issue is far from settled, as ongoing battles over the right are happening in France, the Netherlands, Belgium, Argentina, and other places. Even the United States, with its exceptional protection of free speech, has a long-standing legal doctrine of “practical obscurity” for certain types of publicly available information. Additionally, California now has an online eraser law to help teens scrub their social media profiles.

One of the thorny current issues with the “right to be forgotten” is whether a data protection authority in one country can, in essence, police the transglobal Internet for outdated information upon request by an individual. France is attempting to require Google to de-list links not just from Google France or even for all users in France, regardless of which country Google site they are using to search; but rather, the country’s data protection authority is seeking for Google to remove all links across its search-engines spanning the entire globe. Google is fighting the order.

Another problematic issue is that the phrase “the right to be forgotten” is itself perhaps misleading. In reality, not even the General Data Protection Regulation can guarantee that things once posted online will be entirely forgotten. At best, those things can be removed or obscured from some websites and search-engine results. Further, the status of the “right” is unclear because, in some countries, it stems from privacy law while in others it seems more closely related to habeas data or intellectual property.

The ultimate fate of the right to be forgotten remains to be seen. Although Europe has temporarily resolved this question in favor of the right by adopting its General Data Protection Regulation, many questions surrounding the issue still must be answered. It’s unclear whether other parts of the world will follow Europe’s lead.

Internationally, writers are exploring some of these matters. Already a classic in the field is Viktor Mayer-Schönberger’s Delete: The Virtue of Forgetting in the Digital Age, published in 2009. A more recent notable book is Control Z: The Right to be Forgotten by Meg Leta Jones and I too have written on the topic.

Although the Internet presents unique twists to the right to be forgotten, the discussion about eternal memory has been going on for some time in literature. The Argentine writer Jorge Luis Borges memorably captured the importance of forgetfulness in his mid-20th century short story “Funes el Memorioso.” In the story, a boy who could not forget anything was reduced to lying in his room all day remembering things, and in this way Borges perhaps foresaw the paralyzing aspects of eternal digital memory on today’s Internet.

The issues surrounding the right to be forgotten are real and not easily resolved. My own experience with the graduate who couldn’t get a date taught me that. We didn’t end up removing the article from the web archives, but I hope he was able to fulfill his romantic ambitions.

Featured image credit: computer laptop by Thomas Lefebvre. Public domain via Unsplash.

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