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Saturday, September 26 • 12:16pm - 12:51pm
Reconsidering the 'Right to Be Forgotten' - Shifting the Debate into the Realm of Memory Rights

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On May 13th, 2014, after a long deliberation, the European Union’s Court of Justice established a “right to be forgotten” (hereinafter: RTBF) while declaring that an: Operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful. (Decision 3)

And that: The data subject may, in the light of his fundamental rights […] request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name. (Decision 4)

Coping with the court decision, policymakers, actors from within the telecommunication industry and different commentators have framed the public debate about it as a clash between two prominent liberal rights: the right to privacy on the one hand and freedom of expression on the other. Jonathan Zittrain wrote that the Court’s ruling is “a form of censorship, one that would most likely be unconstitutional if attempted in the United States.” (Zittrain, 2014) Similarly, Jeff Jarvis wrote in his blog that the RTBF is “the most troubling event for speech, the web and Europe.” (Jarvis, 2014) Henry Farrell who wrote that the decision would have “a serious impact on EU-US relations” (Farrell, 2014), set a different tone to the debate.

However, these interpretations offer a limited view of the right’s scope and impact. A critical legal analysis (Kelman, 1990) of three policy relevant papers -- the European Union Court of Justice decision of May 13th, 2014; Article 29 of the “Data Protection Working Party’s Guidelines on the Implementation of the Court of Justice of the European Union Judgment on Google Spain and Inc. v. AEPD and Mario Costeja Gonzalez” published on November 26th, 2014; and the final report of the “Advisory Council to Google on The Right to be Forgotten” published on February 6th, 2015 -- this study suggests a different approach to the right.

Interestingly, all three documents (including the one invited by Google itself) agree that in fact the RTBF should not be read as breaching on expression rights. While referring to the RTBF as a de-listing of results from a search made on a person’s name, the Working Party stated that “the impact of the de-listing on individuals’ rights to freedom of expression and access to information will prove to be very limited.” (p.2) Similarly, Google’s committee declared that “the ruling […] should not be interpreted as a legitimation for practices of censorship of past information and limiting the right to access information.” (p.6)

Hence, if the right to be forgotten is not about the fair balance between privacy rights and expression rights when dealing with personal information over the web, and if, as declared by Google’s committee, the court did not at all establish “a general right to be forgotten,” (p.3) since it “only affects the results obtained from searches made on the basis of a person’s name and does not require deletion of the link from the indexes of the search engine altogether (Working Party Guidelines, p.2), then a different discoursial path when analyzing the right should be taken.

This study suggests that the right to be forgotten should be understood as the right of the individual to control and construct his or her pubic narrative as well as the public representation of his or her life story in the digital era. This somewhat different understanding is backed by the court decision itself when it states that: The organization and aggregation of information published on the internet that are effected by search engines with the aim of facilitating their users’ access to that information may, when users carry out their search on the basis of an individual’s name, result in them obtaining through the list of results a structured overview of the information relating to that individual that can be found on the internet enabling them to establish a more or less detailed profile of the data subject. (Court decision, paragraph. 10)

As such, this study suggests policymakers should change their policy’s jargon. Instead of dealing solely with the rights of “data subjects,” a term widely used in the court decision and the papers ensued, the RTBF should actually deal with the rights of humans as “storytelling animals” (MacIntyre, 1984). Indeed, we tell others stories about ourselves, based on memories derived from our experiences. Combining these stories together we create a narrative of our life. Yet, narratives are constructed, they evolve over time and change constantly. We choose to highlight different life-phases when our life circumstances are changing. Our constructed narratives, based on what we perceive to be our memories, are what others can refer to as our identity. Thus, the RTBF is not really about forgetting, but rather about remembering, about our narratives, and eventually about our identity. As such, this study proposes to reconsider and analyze the right using tools derived from the memory studies discipline, which have gained prominence in the social sciences in recent years (see: Olick, Vinitzky-Seroussi & Levy, 2011).

Using a memory driven perspective, this study critiques the current right’s focus on forgetting, as a memory process is always about both forgetting and remembering. In addition, this study problematizes the fact that the right to be forgotten can be only materialized by individuals, while in fact, memory is a phenomenon shared by both individuals and collectives. Nevertheless, albeit there are some major flaws in the manifestation of the right to be forgotten, it contributed to a much more important discussion about memory rights. Until now, memory and rights were considered as important factors of two different spheres. Yet, the RTBF created a new opportunity to talk about memory rights as what actually happened with its establishment is the beginning of “the governance of personal and collective memory” (Pereira, Ghezzi & Vesinc-Alujevic, 2014, p.3).

Thus, after acknowledging the fact that the RTBF is actually more about memory issues and not about data protection or expression exclusively, and as memory becomes pervasive in the digital era, policymakers should not be satisfied with a limited right of an individual to de-list a particular link from a search engine especially when it only emphasizes forgetting and dismisses remembering, and when it is only applicable to individuals. Rather, they should use the opportunity to talk about memory rights in order to evolve “a culture of just memory” (Ricoeur, 1999, p.11).

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available at: http://www.nytimes.com/2014/05/15/opinion/dont-force-google-to-forget.html?_r=0. Last retrieved: 26/2/15
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Noam Tirosh

Ben-Gurion University of the Negev

Saturday September 26, 2015 12:16pm - 12:51pm
GMUSL - Room 120

Attendees (17)