From an American legal perspective the recently established European Right to Be Forgotten (RTBF) is a disaster. It’s a confusing, vague, impractical and possibly even dangerous decision. But from a European historical perspective it makes considerable sense.
The different histories of the US and Europe in the 20th Century have shaped different attitudes and rules surrounding privacy. As Jeffrey Toobin points out in his piece on RTBF in The New Yorker, in America speech trumps privacy but in Europe it’s mostly the opposite.
There’s no question that the internet is laying waste to privacy, from rampant profiling and data mining to NSA spying and perpetual hacking. The iCloud celebrity photo scandal is the latest high profile example of electronic communication’s threat to privacy; storage of photos or other personal data makes our “private lives” and personal histories vulnerable to unwanted discovery all the time.
Americans are just as concerned about privacy as anybody else. But the First Amendment is a powerful counterweight to assertions of privacy over access to information. Of course there are legal balancing tests that seek to find a middle way between these opposing values.
Free expression or speech is part of the European tradition and was embodied in its post-war Convention on Human Rights, which has been incorporated by individual countries into domestic law to varying degrees. What’s very different however is the way in which World War II (specifically the Holocaust) and subsequent dictatorial communist regimes have shaped European thinking.
I was in Berlin recently and had a long talk with a German about the history of the East German Secret Police, the Stasi. The Berlin Wall came down in 1989 but many people still remember what life was like in the divided country. The communist governments of Eastern Europe repressed millions through domestic spying, monitoring and persecution — in many ways they were successors to the Nazi regime.
In the West GPS and location tracking is used to help smartphone owners to find directions or look up nearby restaurants. In human-rights-denying regimes like China’s smartphones can be used to monitor and track anti-government dissidents.
This is the double edge of technology. And the Europeans are perhaps more mindful than Americans of the dark side in seeking to safeguard individual privacy rights.
The New Yorker’s Toobin quotes Viktor Mayer-Schönberger, an Austrian born Oxford professor whom he characterizes as “one of the intellectual godfathers of the right to be forgotten,” about why such a right should exist:
[H]e describes how, in the nineteen-thirties, the Dutch government maintained a comprehensive population registry, which included the name, address, and religion of every citizen. At the time, he writes, “the registry was hailed as facilitating government administration and improving welfare planning.” But when the Nazis invaded Holland they used the registry to track down Jews and Gypsies. “We may feel safe living in democratic republics, but so did the Dutch,” he said. “We do not know what the future holds in store for us, and whether future governments will honor the trust we put in them to protect information privacy rights.”
The case that gave immediate rise to RTBF was mundane. It involved a Spanish citizen who wanted a past bankruptcy expunged from search results associated with his name. But the subtext or deeper cultural underpinning of the decision involves the collective memory of the Nazi era and the authoritarian Communist regimes and persecutions that immediately followed it.
This does not make RTBF a good decision as it stands. But as the Toobin article points out, and as I more “viscerally” understand since my trip to Berlin, there are serious cultural and historical reasons behind it.
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