The absurd concept of the “right to be forgotten”, as shown in practice
I have expounded my position regarding the so-called right to be forgotten on several occasions lately, and my views haven’t changed. Today, I will be taking part in a round table discussion on the topic at the Madrid think tank and arts center Fundación Canal, and which will be streamed live (in Spanish) from 7.30 pm (GMT + 1 hr). The following is an effort to order my thoughts on what the “right to be forgotten” means.
A disastrous decision by the European Court of Justice on May 13 attempted to enshrine in law the supposed right to be forgotten, which in theory would allow anybody to request the removal of material about their past from the internet. The ruling was made despite the opposition of the EU’s advocate general, something that rarely happens, who pointed out that forgetting or being forgotten is not a fundamental human right but a physiological process; it cannot be requested. Nobody can oblige anybody else to forget something. This has always been so, and is the same in the case of the internet.
If we now throw into the mix the infernal procedures required to try to eliminate not the information in question, but the links to it provided by search engines, the matter shifts toward farce: it’s not possible to find information on the search engine, but it is on the original pages. Let me explain. From now on, if you live in the EU and you want to find out about somebody from the internet, then you will either have to go to a non-EU country free of censorship, or access the original page where the content you are looking for is stored. In other words, a pretty unsatisfactory situation. The European Court of Justice has taken on the role of the sorcerer’s apprentice, creating a situation that will soon be beyond its control, not that it wasn’t warned, like the sorcerer’s apprentice, of the dangers.
The intended “balance” between the right to receive correct information from any media (Art 20.1d of the Spanish Constitution) and that guaranteeing privacy (Art 18.4 of said Magna Carta) is a fiction: there is no conflict of interest in the first place. Obviously, being told the truth is a right. But privacy cannot be guaranteed by debilitating a search engine; it is necessary to go to the root of the issue, which is the source of said information that is breaching somebody’s privacy. How many times do we have to say this? If, in the pre-internet days, it was not possible to go into libraries ripping out pages, how is it now legal to censor links to information and photoshop the past. It’s exactly the same: friction above, friction below. And if it is not right to patrol the web with a giant eraser, it is even less right to crudely pull down signposts to information.
The roots of this problem date back to when the all powerful copyright industries forced governments to legislate in their favor and against the interests of the rest of us, forcing Google and other search engines to eliminate search results that led to pages whose information was copyrighted. It was at this point that the idea of a parallel internet was born, with content that is not indexed. In reality of course, the downloads have continued, and if there has been any progress in this area it is because of the gradual move toward more efficient business models; in the meantime, we have grown used to living a lie, and seeing reality through a veil.
What has Google’s response to the EU Court of Justice’s decision? It has tried to obey the new law… and in the process highlighting how mistaken the law is. On July 3, Google began to notify media such as the BBC or The Guardian that certain links to stories published by them would no longer be provided by it because somebody had requested this. The absence of any appeal process to allow media to complain about the disappearance of their links has led to a state of total confusion: after leading media protested to Google, it restored some of the links. Do we really want to live in a world where search engines are forced to remove links to correct and factual information published by the BBC or The Guardian, simply because somebody feels that they tarnish their image or reputation? The EU’s decision is over the top, ill-conceived, and poorly implemented.
Matters have been made worse by Google’s “warning” that the links on a page relating to somebody are incomplete will simply encourage people to keep on searching.
This is not about Google. The search engine is just one of many players involved. At this rate, the next targets will be social media, taking in any page that provides a search feature, including this one. Whether you like Google’s business model or not, and whether you think that the way users’ information is handled needs addressing—which by the way is much less intrusive than in the pre-Google age—we should be aware that what is at stake here is far more serious and far-reaching than the reputation of a company.
A law that allows somebody to camouflage their past, to erase what they once did or said is very dangerous, and bordering on the Orwellian. That the EU’s Court of Justice can not be appealed against is even more worrying. The EU Court of Justice is a tribunal of final instance, and direct appeals cannot be made regarding its rulings: this case clearly shows that this should not be so.
So let’s just spell this out once again: THE RIGHT TO BE FORGOTTEN DOES NOT EXIST, IT HAS NEVER EXISTED, AND IT WILL NEVER EXIST, regardless of how many laws are passed. This is an absurd invention, a legal artifact devoid of common sense. Things do not become any more real simply because a law is passed about them. Nobody has the right to have their life photoshopped out: forgetting doesn’t take place when we want, or when the law says so, but when other people forget via a physiological process. If we really want to live in a world where the past can be eliminated from the public record, which is bad enough, then we will have to arrange other means, focused on sources, and not on search engines, which exist precisely to uncover the truth, however inconvenient it might be to some.
(En español, aquí)
