The new right to be forgotten

The European Court of Justice recently ruled that Google has to remove links to specific articles on (proper) request where the damage to the individual outweighs the public right to know.

It has generated a lot of reaction. Lots of people have done things, or have been accused of doing things, and would prefer that the records of that don’t appear when people do a search for them. If a pedophile or a corrupt politician wants to erase something from their past, then many of us would object. If it is someone who once had a bad debt and long since paid it off, that seems more reasonable. So is there any general principle that would be useful? I think so.

When someone is convicted of a crime, sometimes they are set to prison. When their sentence terminates, they are considered to have suffered enough punishment and are free to live a normal life. However, they keep a criminal record, and if they apply for a job, the potential employer can find out that they have done something. So they don’t get a clean record. Even that is being challenged now and the right to start again with a clean slate is being considered. In trials, usually the prosecution is not allowed to mention previous crimes lest they prejudice the jury – the accused is being tried for this crime, not for previous ones and their guilt should be assessed on the evidence, not prejudice.

The idea that after a suitable period of punishment you can have the record wiped clean is appealing. Or if not the formal record, then at least easy casual access to it. It has a feel of natural justice to it. Everyone should have the right to start again once they’ve made amends, paid their debt to society. Punishment should not last for ever, even long after the person has reformed.

This general principle could be applied online. For crimes, when a judge sentences the guilty, they could include in their punishment a statement of the longevity of internet records, the duration of public shame. Our lawmakers should decide the fit and proper duration of that for all kinds of crime just as they do the removal of liberty. When that terminates, those records should no longer turn up in searches within that jurisdiction. For non-criminal but embarrassing life events, there should be an agreed tariff too and it could be implemented by Information Commissioners or similar authorities, who would maintain a search exemption list to be checked against search results before display. Society may well decide that for certain things that are in public interest. If someone took drugs at college, or got drunk and went rather too far at a party, or was late paying a debt, or had an affair, or any of a million other things, then the impact on their future life would have a time limit, which hopefully would be the same for everyone. My understanding of this ECJ ruling is that is broadly what is intended. The precise implementation details can now be worked out. If so, I don’t really have any big objection, though I may well be missing something.

It is indisputably censorship and some people will try to use their power or circumstances to get into the clear earlier than seems right. However, so far the ECJ ruling only covers the appearance in search engines, i.e casual research. It will stop you easily finding out about something in your neighbor’s or a colleague’s distant past. It won’t prevent journalists finding things out, because a proper journalist will do their research thoroughly and not just type a couple of words into Google. In its current form, this ruling will not amount to full censorship, more of a nosey neighbour gossip filter. The rules will need to be worked out and to be applied. We should hope that the rules are made fair and the same for all, with no exceptions for the rich and powerful.