originally published August 10, 2014
There are a few moments in my life that I wish could be collectively forgotten by all who had witnessed them. Throwing up in my high school parking lot after downing a half-bottle of Southern Comfort at 1:00 in the afternoon. Shooting that spitball in the sixth grade that missed my target and thwacked my teacher in the face. Accepting that dare to chug back a large KFC gravy like it was Gatorade.
But those are the curses strung like sooty leis around the neck of my conscience – the snarky memories that promise to surge into my brain at unwanted moments, when I’m otherwise feeling good and groovy. We’ve all got them, and some are even more awful to imagine than the gravy thing. The question I’m asking today is how much are we legally allowed to wipe from the societal record?
The “Right To Be Forgotten” sounds like a foray into self-imposed hermitism, of declaring one’s intention to leave the grid and skitter out of civilization’s crosshairs. And while that can play into it, the right to be forgotten is a far less dramatic and demanding concept, yet nearly as tricky to achieve. What about simply yanking something off the record? Booting the search engine results that conceal that most jagged bone of the skeleton in your closet? It’s not so simple.
The European Union addressed this issue early in the internet age, adopting something called the European Data Protection Directive in 1995. This is a lengthy bill, full of rollicking puns and nineteen colorful applications of the word “fuck-bucket”. Actually, I haven’t read the thing, but I’m sure it’s a laugh riot from start to finish. It sketches out that fine twisted squiggle between privacy and transparency, offering a legitimized perspective of where human rights trump the right to knowledge. And if you’re someone who’d like to keep a little nugget of your past quiet, it’s a really good thing.
The European standard places control of one’s past squarely in the hands of the individual. This isn’t to say that a serial killer can have his name expunged from all future records, but it does allow someone to pluck out the traceable elements of their past and effectively ease their disappearance. It won’t relieve you of your spot in the government register (and thus snuff out your tax obligations), but it could help you flee an invasive stalker or ditch that ex-husband who keeps leaving you Air Supply-heavy mixtapes in your mailbox.
Earlier this year, a man named Mario Costeja Gonzàlez asked Google to remove a link to a 1998 article that discussed the foreclosure of his home. It was a true story, it just didn’t make Mario look so hot; the fact that he later repaid every peseta of his debt and righted the ship of his credit wasn’t mentioned in the article, but instead the link simply served as a testament to his darkest financial days. Google refused – the article was accurate (if outdated) and they shouldn’t have to remove it.
Not so, claimed the European Court of Justice. The EU privacy law allows for a person to request the removal of such information, even if that info is true. An Irishman, Gerry Hutch, was similarly successful in getting the link to his Wikipedia page (which tells how he was a principle suspect in two of the largest armed robberies in the nation’s history) removed from Google’s search results. The man presently spends his time volunteering in Dublin’s inner city, working with poor kids to keep them off drugs – even if he was guilty of those heists (which was never proven), he should be allowed to have those big maybes taken off his record.
Or should he?
Two countries have rather vocally spoken out against the scrubbing of one’s online biographical factoids: Argentina and the USA. Europe classified their directive as a component of their human rights laws, but in America it’s a very different story. Protecting the sanctity of the Google search is not so much about protecting data, it’s about freedom of speech. After all, isn’t the act of blacking out search results a form of censorship?
The first time this popped up in American law books was the case of Melvin v. Reid. A former prostitute named Gabrielle Darley was in the process of putting her wild past behind her in the autumn of 1925, when a silent ‘social conscience’ film called The Red Kimona was released, depicting her story and using her actual name for the character. Gabrielle sued the producer and won an impressive settlement. This would suggest a similar stance to the present European embrace of one’s right to be forgotten. But free speech is a more precious gem than most in the eyes of America. It’s the one you simply can’t mess with.
When William James Sidis, about whom I have written before, read a piece about himself in the New Yorker, he asked to have it yanked. He was a child prodigy, raised with his impressive intelligence perpetually under his scientist father’s microscope, and achieving a modicum of fame at a time when people actually cared about child prodigies. Now fully grown up, Sidis didn’t want that embarrassing chapter of his life rehashed, and when the New Yorker refused to pull the story, Sidis brought them to court. Tough luck, the court told him. You can’t just run away from your celebrity because you want to.
It’s a fuzzy area in which basic rights are poised to take a slight smack no matter where the law ends up. No one wants their future potential employers to read about that time they were let off with a warning for public urination, but one could argue that those employers have a right to know. I faced a situation on this site in which I identified the founder of the World Finger Jousting Federation with his name and photo. The man contacted me, advised me that his present career path (flying fighter jets for NATO) didn’t jive with his earlier exploits, and asked me kindly to remove the photo. I was not legally obligated to comply – I was simply regurgitating fact. But I yanked it down anyway, because I’m just that nice.
In Germany, lawyers for a man named Wolfgang Werlé tried to push Wikipedia to yank Wolfgang’s name off the entry for Walter Sedlmayr, a man Wolfgang had been convicted for murdering. A 1973 Federal Constitutional Court ruling had allowed for a suppression of a criminal’s name once he’d served his time – at least in the media, which was all that mattered back then. According to the EU rules, Wikipedia would have to comply.
But here’s the catch: Wikipedia has zero holdings in Germany. They are an American-based company, and as such they have not had to appear in German court to defend their right to publish info. Freedom of Speech wins in this case, and Wolfgang’s name is still etched in the legacy of what he did.
I have no problem with this – we all have stuff we’d like to see wiped off the books, and in many cases it would be a harmless act of history-smudging to do so. But when someone takes another life, I think that right to sweeping the dust under the rug has been relinquished.
But that photo of me barfing into the punchbowl at my cousin’s wedding? Come on Google – it’s been years now. Cut me a break.