The Right To Be Forgotten

| by Ruwantissa Abeyratne

Forgiveness is the remission of sins. For it is by this that what has been lost, and was found, is saved from being lost again.”
- St. Augustine

( June 4, 2014, Montreal, Sri Lanka Guardian) Recently, the European Court of Justice issued an advisory judgment in favour of a Spanish man, Mario Costeja González, who had requested a newspaper website in Catalonia to delete the publication of an auction notice of his repossessed home dating from 1998. This resonates a growing trend where persons now want past information about them that may be no longer relevant or fair, to be deleted from internet websites. As a result of the judgment, Google, the largest search engine in the world, launched a webpage through which European citizens can request that links to information about them be taken off search results.

One of the difficulties posed by the European Court's judgment is that search engines such as Google are now faced with having to decide which information to delete and which to retain, and the criteria to be used in the exercise.

Another difficulty, perhaps more contentious and onerous, is the balance between what I would call "the perpetuation of fault" and the freedom of the media. The law, which is purported to be the queen of humanities, expounds the principle that no man can be convicted twice for the same offence. Irrelevant information from the past may lead to social condemnation and ostracism, or worse still, total avoidance of a person by society. On the other hand, would not society want to know of a convicted felon or one found guilty of cheating, particularly if the person so found guilty later establishes say, a legal or dental practice?

This poses nuances of a moral nature that are difficult to address. One could argue that everyone has the right to a second chance, a right to be forgotten for what he was and the inalienable right to get on with life. If the perpetuity of an offence were to haunt one publicly and socially, that person may never get an opportunity to overcome his moral guilt, and more importantly, to start a new life. On the other hand, one could say that society has a right to know in order to protect itself and that it is the very purpose of freedom of the media - to keep society informed. In a webpage called "techdirt" I came across the following quote: " The general idea is that someone, say, who has committed a crime, but is then rehabilitated / served his time / whatever, deserves a "fresh start" and the stories of the crime and punishment should be erased from publications. Europeans who support this wacky idea argue that it's a form of a privacy right. But that's ridiculous. It has nothing to do with "privacy" at all, as the fact that someone committed and convicted of a crime is a public fact, not private info. Telling people (and publishers) that they can't talk about factual information, or even leave available factual stories written at the time just seems completely offensive to anyone who believes in the basic idea of free speech".

Perhaps the philosophical argument between this dichotomy might lie in determining what is irrelevant and unfair, as against what purpose a piece of past information might serve society. This might be the only way out of the dilemma for Google and other similar search engines. In other words, in order to decide which information to delete and which to keep, the search engine might have to take the right decision for the right reason. It might require an inquisition into Aristotle's teleology where decisions are based on the purpose, and the moral autonomy of the 18th century philosopher Immanuel Kant's categorical imperative which disputed the Utilitarianism of Jeremy Bentham. Would Google choose the good of the most along the lines of Bentham's consequential utilitarianism or the categorical imperative of Kant?

Effective journalism is a driver of social consciousness in any society and objectivity is most critical to a journalist. Sociologist Michael Schudson argues that "the belief in objectivity is a faith in 'facts,' a distrust in 'values,' and a commitment to their segregation". Immanuel Kant, in his Groundwork for Metaphysics of Morals said: " A metaphysic of morals is therefore indispensably necessary, not merely for speculative reasons, in order to investigate the sources of the practical principles which are to be found a priori in our reason, but also because morals themselves are liable to all sorts of corruption, as long as we are without that clue and supreme canon by which to estimate them correctly. For in order that an action should be morally good, it is not enough that it conform to the moral law, but it must also be done for the sake of the law, otherwise that conformity is only very contingent and uncertain; since a principle which is not moral, although it may now and then produce actions conformable to the law, will also often produce actions which contradict it. Now it is only a pure philosophy that we can look for the moral law in its purity and genuineness (and, in a practical matter, this is of the utmost consequence): we must, therefore, begin with pure philosophy (metaphysic), and without it there cannot be any moral philosophy at all. That which mingles these pure principles with the empirical does not deserve the name of philosophy (for what distinguishes philosophy from common rational knowledge is that it treats in separate sciences what the latter only comprehends confusedly); much less does it deserve that of moral philosophy, since by this confusion it even spoils the purity of morals themselves, and counteracts its own end".

At the end of the day, it all boils down to social justice, which is about respect for human rights and dignity. Everyone has the right to work and people have the right to choose the kind of job they want to do. Everyone has the right to good working conditions. Everyone has the right to equal pay for equal work. People should earn enough to keep themselves and their families healthy, to give them enough food to eat and enough clothes to wear, somewhere to live and medical attention when they are ill. Everyone has the right to own property. Anything that belongs to a person, such as his good character and social and moral standing, cannot be taken away from him or her unless there is a fair reason. Everyone has the right to think the way they like. People have the right to hold opinions and tell other people what their opinions are.

Perhaps Google will start recruiting legal philosophers? I want to apply.

The author is a retired UN official who runs his legal consultancy in Montreal, Canada

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