Forget me not
13 April 2011
The European Union is forging ahead with its plans to create a "right to be forgotten online". The only problem is, no such right exists – nor should we conspire to invent one.
The problem seems to be one of lingusitics, or at least translation. The term le droit à l'oubli – literally, the right to oblivion – originated in France and sounds, to Anglophone ears, darkly poetic. A right to oblivion sounds like the kind of 'right' usually achieved in a darkened room with a loaded gun, or perhaps a flat masquerading as a clinic in Switzerland. Even the rather more toned down translation, the right to be forgotten, is not something we should welcome with open arms.
A right to remove one's personal data from social networks, borne of a broader right to privacy and ownership of one's own identity, is not at all objectionble. In fact, any such move should be welcomed. But the creation of a false right to obliterate all traces of one's public actions is far from risk-free.
In fact, it risks the creation of an Orwellian memory hole into which facts can disappear.
We have already seen a court in Germany successfully petitioned to have convicted murderer Wolfgang W.'s name removed from the German edition of online encyclopedia Wikipedia, along with attempts to gag the US edition of the web site.
What does Mr W. want? He wants, now that his sentence is spent, to have any future reference to his 1990 killing, along with Manfred L., of actor Walter Sedlmayr banned. In other words, he wants to partially erase the killing from the public record. In fact, he sought to have it entirely erased but failed to do so – sort of. Despite the fact that Germany's federal court decided newspapers would not have to purge their archives for past references, Mr W. will be able to stop his actions being noted in any future record events – something that throws Germany's commitment to a free press into serious doubt. Moreover, as can be seen in this archival copy of a Spiegel article predating the 2009 judgement, German publications appear to be removing Mr W.'s name from their archives anyway.
(You don't have to be a particularly keen-eyed reader to notice I myself have not given Mr W.'s full name. Unhappily so, in fact, but I simply do not know where French law would come down on the matter. So, as you can see, the German court's gagging order is already working. Here is a 2009 article published in the British newspaper the Guardian which also dances around Mr W.'s identity. Clearly this is a farce.)
Mr W. and his co-convicted Mr L. continue to protest their innocence, and are entitled to do so, but until such time as they can prove before a court that their convictions were unsound it would be bizarre to suggest that the very concrete actions they were convicted of should be clouded in secrecy. For a start, justice cannot be upheld for any party if it is conducted in secret. Moreover, there is the likelihood of setting a very dangerous precedent, something Germany's courts have so far refused to rule out.
Indeed, as Wikipedia itself notes – for now, at least – "presiding judge Gregor Galke stated [of his decision to not force newspapers to perform a Winston Smith on their archives], "This is not a blank check", and pointed out that the right to rehabilitation of offenders had been taken into consideration."
Offenders should be helped to rehabilitate, that much is beyond doubt, but the consequences of allowing lawyers to rampage around the internet erasing facts are, frankly, chilling. The highly emotive case of two men convicted of murder makes for a good headline but the real danger is in the rich and powerful, the kind of people who can afford top lawyers, rewriting history in their own interest.
Some things we simply cannot afford to forget.