The right to be forgotten, the EU ruling affecting Google search results, has caused all manner of anger and confusion amongst many people. This is more than understandable, as the ruling itself strikes a raw nerve with regards to censorship and information control. While the ruling contains numerous practical problems, which alone should render it troubling, but I also wish to take issue with the underlying right that is being protected here. The EU is not just making a misguided attempt to protect a natural right, but rather is meddling with the fundamental rights of society.
It is worth taking some time out to actually clarify what has been decided by the EU, it establishes the principle of individuals (and almost certainly extensible to corporations at some point in the future) having the right to have some events or incidents "forgotten". This is not a right to expunge material and content from websites themselves, that is presumably still within the domain of slander and defamation laws, but rather imposes the responsibility of scrubbing search results returned by search engines at the minimum (Google is the first "test case" but the principle is broad rather than specific to Google). The regulations are aimed at 'data controllers', a definition which can get plausibly be extended beyond search engines to encompass other bodies also.
Danny O'Brian, speaking on the podcast This Week In Google, identified the glaring practical flaw in this requirement, that "half censorship is like being half pregnant, it just doesn't work". Since there is no legal framework being proposed to actually comprehensively remove the information in question, the decentralised nature of the internet means that these attempts at information control will fail, and thus increase the pressure to find more and more comprehensive censorship solutions.
So what exactly can be forgotten from the public (search) memory? This is a critical point, it is not outright defamation but rather accurate reporting of facts that infringe on the ‘the right to silence on past events in life that are no longer occurring.’
This has been popularly been described as the right to have teenage indiscretions not pop up during screening for job applications for example, or publicly known, and embarrassing, convictions that occurred a decade or so ago not appear when searching for an individuals name.
I'd like to put aside all political and practical issues here and just examine the question of whether individuals have an underlying right to have these incidents forgotten? What ethical or philosophical basis does this right derive from?
They appear to largely rest upon the notion of personal data as something which intrinsically belongs to the individual, which can be temporarily "granted" to the data controllers but also can be revoked or the purpose for which it was collected is no longer relevant.
The legal framework extending from this formulation seems simple, applied to private collections of data it seems perfectly reasonable, why should your dentist keep your personal data on file if you either wish it to be destroyed or if you switch to a different dentist? We similarly grant our personal data to certain internet companies, for example Facebook, on the basis of mutual advantage. If we then decide to back out of that arrangement, or its utility to us has run its course, then having the right to demand that data be removed and/or destroyed seems to be a necessary correction to the balance of power between individuals and service providers and/or corporations.
Where that logical chain breaks down is the understanding that the internet as a whole, and particularly internet search engines, are nothing more than service providers that hold our personal data. This is demonstrably untrue, the service provided by Google or Bing is not an exchange of personal data for a utility, but rather a conflation of two separate transactions.
The "normal" transaction is the exchange of the personal browsing/searching habits of the individual in exchange for search results given. The second transaction is the indexing of web content by the search engine on exchange for driving of traffic to the website in question. In both cases the transaction is voluntary, websites can choose not to be indexed by search engines and individuals can either use a privacy focused search engine or none at all.
So what about personal data present in webpages that are being indexed? This data is present in search results through a third party, the website which is being indexed. Unless it is held on a private database, it is accessible to all, i.e. it is within the public sphere. We have an immense amount of law and regulation which defines the scope and acceptability of personal data within this sphere, from defamation and libel laws, child protection legislation, harassment law, etc. Critically, this body of law and regulation is primarily concerned with dealing with the source directly, the webpages themselves (although search engines and indexing services also have legal requirements).
Why should this framework be protected against the 'right to be forgotten'? It is, simply put, our collective public memory. Working outside of the system of defamation, harassment, etc. means that our ability to establish factual truths is in jeopardy. The argument that it only controls casual access is extremely weak, knowledge as traditionally captured in the forms of books and manuscripts has always required indexing and organisation. A vast unsorted library does not equal access to information, indexed and organised libraries equal true access to information. The internet is, without a shred of doubt, the largest and most comprehensive store of human knowledge, without organisation and indexing it is simply a mass of words and images far too immense for any single individual to absorb or effectively utilise.
The 'natural' right of individuals to have certain incidents forgotten against this critical social right is extremely weak, the individual who commits indiscretions in his or her youth should have recourse to appeal to society, not to law. Building a tolerant society is not a function of law and regulation, it is the function of shared morality and ethics. Law is, at its most fundamental level, an attempt to balance various rights and obligations to ensure the best outcome for society as a whole.