Right to Be Forgotten, or Right to Evolve?

April 6, 2018

Thanks to Carter Vance, a 2018 Harrison Middleton University Fellow in Ideas, for today’s post.

When the European Union first gave legal force the notion of “right to be forgotten”, in a 2014 court ruling against Google, I was amongst those who were both confused at the practical impacts and fearful of what its long-term effects might be. Confused, because it has become an almost axiomatic truth for those of us who grew up with access to online spaces that the Internet does not forget. Anything, once posted online, regardless of how much effort is spent trying to scrub it out later on, is there forever, for anyone dedicated enough to seek it out. How, in concrete terms, was this “right” going to function, and to the advantage of whom? Though pitched as a device through which individuals could protect their reputations from false, misleading or outdated information, the potential dangers of such a “right” being active were obvious. Corporate CEOs could remove information about financial improprieties, abusers could remove information about their legal convictions, and so on. It is always worth remembering that attempts to use the public force of law to restrict informational flows have an inherent bias towards the well-resourced, as they are able to afford to bring forward the court cases which enforce such provisions. In other words, the danger is that it would become less a general “right to be forgotten”, and more a specific right to evade accountability for the powerful.

It is true that, under EU law and the various similar rights proposals that have been made in other countries, there is not an obligation for a piece of information to be completely scrubbed out of digital existence. Rather, individuals can request that particular information having to do with them be delisted from the search results of Google and other such companies that serve as primary traffic directors of the web. In this way, we are not talking about a true right for information to be completely eliminated, but rather to be made much more difficult to locate, and not be the first thing that an online searcher sees when looking for a particular person’s name. A dedicated researcher would still be able to locate something a person did not want to be known about themselves, but the casual reader would not. It is worth noting in this regard that, according to leaked internal reports from Google (which is by far the largest recipient of “right to be forgotten” requests), that 95% of the requests it receives are from private individuals trying to remove personal information from the internet, not the public or corporate figures some feared would abuse the system. Was, then, the concern over the EU’s decision entirely overblown, and should other countries embrace such a system as well? In my opinion, the answer is deeply complicated, and involves just as much a failure of social norms to evolve in response to technological change as it does a gap in the legal frameworks around information and privacy.

In terms of privacy, a couple of obvious initial points should be made. Insofar as the “right to be forgotten” is used to remove personal information or other intimate details that were posted about an individual but not by them, it is perfectly in line with existing privacy and anti-harassment laws in most countries. The system which Google uses to process requests is much more accessible than the often-obscure and inaccessible legal miasma which surrounds practically applying anti-harassment laws in online spaces. If information about an individual, which is not in the public interest, is online without the permission of that individual, it seems only natural to allow them an accessible option to have it removed. The same is true of outright false information about a person, or claims which reach the legal standard of libel. There is, of course, always going to be debate about where the lines of “public interest” and “libel” ought to be drawn (for instance, opinions differ on whether a politician cheating on his or her spouse is within the public purview), and different states have come up with different answers to this question, which have evolved over time. There may never be a legal standard in respect to public interest which satisfies everyone, but it is at least an area of both legal and political theory with a substantial background where the broad parameters of the debate are well known.

The more novel question at play concerns information or posts that one consciously chooses to put online, but then later wants removed. I came into this consideration myself recently when a comment I had made when still in high school (about a decade old at this point), resurfaced as it sometimes does. In it, in the course of making a joke about the film Silence of the Lambs, I used some language about trans persons that struck me as gobsmackingly retrograde in the light of 2018. I don’t judge it to be bigoted (though of course I cannot definitively speak to that), but it definitely is not language I would use today. I thought, however, if this had been found by someone else and I was asked to account for it, how would I do so? Would the passage of time, my intent in making the comment and the changing consciousness around those issues be explanation enough?

From this, I thought too about the recent semi-scandal of the British MP Jared O’Mara, who was found to have posted similarly crude and offensive comments about gay men on online forums in the early 2000s and subsequently faced disciplinary action as a result. He, whilst apologizing for the comments, did attempt to contextualize them within the language often used by young men at the time of their writing (O’Mara was in his late teens and early twenties), as well as his own social difficulties at the time due to his cerebral palsy, to a mixed social response. He did, however, stress that it is not language he would use in the present day and that his understanding of homophobia had progressed due to a general change in social climate around gay issues in the subsequent years. But, again, it can be asked, is his apology accountability enough, or should it go beyond that? Does O’Mara, assuming that he is sincere in his comments about having changed, have the right to no longer wear his old comments as reflective of who he is now? Would it have been right for him to ask that they be removed from the internet before his election, such that the whole controversy would have been avoided?

Though it may seem obvious to simply say that actions have consequences that should be considered before doing them, the reality when it comes to online speech is not so clear. What if, for instance, a comment is taken out of context and used to actively misrepresent the character of the person who posted it? Does this meet the standard of false information or libel, and who makes that determination? Is there a statute of limitations after which a person can reasonably say they no longer think in the way they did when the comments were made? Does this apply to people at all ages equally, or is it especially active for younger individuals? What about allowance for changing norms of speech? All of these are hard questions to answer, often embedded in the particular context of what, exactly, was said and who, exactly, was saying it. The issue is that a trial in the court of public opinion does not have even the limited guard rails for fairness we expect in the legal system, even if it is understandable that many turn to it when that legal system itself fails to provide justice.

A notional, if not often truly implemented, pillar of that justice system is of rehabilitation for all but the most egregious crimes. The idea that accountability involves a finite, rather than indefinitely ongoing, punishment is still not fully realized in the formal legal system. This is why, for instance, many organizations involved in criminal justice reform efforts have pushed for so-called “ban the box” legislation to prevent employers from inquiring about the criminal records of applicants. The problem is that, as we move to a world where more and more of our social lives and internal thoughts are expected to be put out into the world for all to see, and more importantly, archived to be looked back through, more punishment is being delivered through systems which are outside of the formal legal realm. For instance, “doxing” campaigns often attempt to get individuals fired from their jobs by connecting them to either questionable or outright hateful posts. This is not, in and of itself, a bad thing, as it could be reasonably stated that employers have an interest in not hiring, for instance, white supremacist activists, as do that person’s co-workers in not working with them (of course, this leads into a much more involved discussion on employment law, which there is not space for here). But, much like the drawing of the “public interest” line spoken about above, there is far from a clear social consensus on what kinds of attitudes or statements online constitute grounds for this kind of action to be taken, and there is not even a political system through which this line can be debated effectively. Instead, there are many different standards depending almost entirely on the social norms prevalent within the milieu of the individual who gets caught in a social media storm. A middle-aged white male insurance salesman from Alabama, for instance, is probably less likely to lose his job over insensitive tweets about the NFL kneeling controversy, than is a young copy editor at a magazine in New York. The latter, then, is going to be far more likely to want to access a way to make those tweets, and their attendant controversy, at least less accessible, if not disappear entirely.

In a time before the internet, if one made remarks 10 years ago which no longer reflected one’s beliefs and attitudes today, it is unlikely, unless you were a public figure at the time, that they would be held against you. There was a certain understanding that attitudes and beliefs should be allowed to naturally evolve and change over time and that being constantly confronted with one’s old statements would represent an impediment to that growth. Now, at least those expressions that are posted online have the potential to haunt us long after we have rethought them. One possibility of resolution on this front that keeps us from spiraling into ever-greater recrimination is that, eventually, those in positions of social and cultural power will all have grown up on social media, and thus a dynamic of mutually-assured reputational destruction sets in. Of course, the problem this may end up facilitating is that, as in the past, too many genuinely troubling or destructive behaviours are simply written off as follies of youth and thus allowed to fester unchecked. This use of the past as a cloak of secrecy can often also write off present behaviour by making it seem exceptional rather than as part of a pattern, and a return to a totally opaque world is also not desirable. Perhaps, then, the “right to be forgotten” is a somewhat crude and imperfect legal tool that needed to be developed in order to resist, or at least minimize, the trend towards the totality of one’s online presence being eternal and inescapable. Its inherent failure, though, is that it attempts to correct with a legal mechanism what is ultimately a social problem of a lack of allowance for personal growth and proportion of punishment.

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