Writing in Postmedia papers, MLI Managing Director Brian Lee Crowley argues that a court decision forcing Google to suppress certain links in Internet searches leaves the historical record vulnerable to damage. Crowley says the “right to be forgotten”, as the case is now known, gives too much power to individuals to erase history.

The column appeared in the Ottawa Citizen, the Edmonton Journal, the Vancouver Sun, the Saskatoon Star Phoenix, the Montreal Gazette, Vancouver's The Province, the Regina Leader-Post and the Calgary Herald.

Brian Lee Crowley, May 23, 2014

To whom does the past belong?

That is the fundamental question posed by the European Court of Justice’s (ECJ) decision last week to enshrine in European law the “right to be forgotten.”

The Spanish complainant in the case was upset that whenever you Googled his name, in addition to all sorts of things he approved of, you also learned some things about him that he would rather forget. Some years before he had had debt problems and newspaper notices about his related legal problems would pop up. His view was that those issues were old news and he had a right to demand that Google suppress any such offending links.

He was not alleging that the information was incorrect, libellous or malicious. His complaint was that it was old and that he was no longer the person described. His right to privacy trumped, in his view, everyone else’s right to know. The ECJ agreed and ordered Google to suppress the links and to do so in all future cases where private persons (i.e. not celebrities or political figures, who are subject to slightly different rules) may legitimately feel that information about them is dated and damaging to them today.

Failure to come up with the right answer in each instance will expose Google to fines from various European privacy commissions. This makes Google, hitherto seen as a neutral service helping people find whatever information they seek, now an agent of the privacy state, charged with deciding what we are free to learn about each other.

This has had two predictable consequences. A number of people with damaging pasts, such as disgraced politicians and convicted pedophiles, have asked to have links revealing their misdeeds suppressed. And Google, which has no capacity to adjudicate claims to the right to be forgotten, will likely simply acquiesce in virtually all claims to have links deleted.

Advocates for greater privacy in the Internet age are cock-a-hoop. For them, information about you and your past belongs to you and you should have the right to prevent others from learning about unpleasant facts about your past because you may find them embarrassing.

But if we think through the logic of this “right to be forgotten” it is no victory for humanity. That logic would require, for example, that we not stop at mere internet links. After all, it is the availability of the underlying information that is the real issue. To be consistent the court would have to order that all the old newspapers that Google linked to would have to be cleansed of the offending information.

Turning old newspapers into Swiss cheese is a much more arresting image than the abstract “deletion of links” on a search engine. But that is exactly the principle the ECJ is admitting in its decision. If you find the idea of vandalizing the historical record appalling, you should find it just as appalling in cyberspace as in the newspaper morgue.

That’s because the past doesn’t just belong to the people who played a role in it. It is the common heritage of us all. We have an abiding need to protect the integrity of the truth and completeness of that record. As George Orwell so chillingly reminded us in Nineteen Eighty-Four, “He who controls the past controls the future. He who controls the present controls the past.”

Still fresh in Orwell’s mind were the Stalinist purges that resulted in people being expunged from the historical record, their faces erased from photos, their names expunged from the history books.

What we did in the past does not and cannot belong to us alone, even if our past acts embarrass us today. One of the most promising things about the Internet is that it is controlled by no one, making the control Orwell denounced all that much harder to achieve. For there to be a right to be forgotten, someone must have the power to erase the record. That’s far worse than being remembered.

Brian Lee Crowley (twitter.com/brianleecrowley) is the Managing Director of the Macdonald-Laurier Institute, an independent non-partisan public policy think tank in Ottawa: www.macdonaldlaurier.ca.

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