Historians and the Potential Consequences of the “Right to be Forgotten” Ruling

The Court of Justice of the European Union recently made international headlines by backing “the right to be forgotten” and ordering Google Spain to take steps toward allowing Europeans the right to remove personal information that has become outdated or irrelevant from search providers, most notably Google.

The court’s decision came by way of an appeal from Mario Costeja González, who was upset to find auction notices relating to his 1998 bankruptcy (posted in the Spanish newspaper La Vanguardia) on Google. González argued that news relating to his financial bankruptcy should no longer be linked to his name in Internet searches. The court agreed, and ruled that González’s privacy rights override “the interest of the general public in having access to that information upon a search relating to [González’s] name.”Google-search

As a result, the ruling now allows individuals to control their digital footprint and play more of an active role in censoring what information users can retrieve about them in a search. In order to comply with this request, Google has created a “Search Removal Request” form that allows individuals to petition Google to remove links.  In the form itself, Google states it will evaluate the request and look at whether the links “include outdated information about you, as well as whether there’s a public interest in the information- for example information about financial scams, professional malpractice, criminal convictions, or public conduct of government officials.” While not completely deleting the offending materials, the ruling allows users to block web crawlers from retrieving the material, which makes it very difficult for a user to be aware of, much less find, the offending link on their own. It would require the individual to have advance knowledge of the material and where the original source is hosted (including in some cases, the URL itself).

While the ECJ ruling allows users to control (and censor) their digital selves, these changes have broader implications for future historians. The ruling has the potential to make it more difficult for historians to access the totality of information on a research subject, particularly as more public institutions are being mandated to produce born-digital materials. What happens if the only format these records exist in is digital and a search engine can no longer index the materials? Do we really want to be prohibited from accessing divorce records, bankruptcy notes, and arrest records (just to name a few)? Or, as I asked in a previous Perspectives on History column, should individual privacy always supersede the future needs of historians? And lastly, how will Google define a “public interest” in evaluating what information can and will not be accessible, and does that interest include the needs of historians?

It is unclear how this ruling will be carried out throughout European countries. In the weeks after the ruling, Google has been inundated with thousands of takedown requests, both by European citizens and from users outside of European jurisdiction seeking to censor materials that are indexed on European search engines. I encourage historians to watch this issue as it takes shape across Europe, and sound off in the comments below.

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  1. Mark B. Tauger

    1. Sometimes a person makes a mistake, an error of judgment. I do not mean a terrible action like school shootings, but a lesser mistake, part of a learning process, that others would try to use to attach and discredit him/her. Politics is full of such cases. The person might justifiably feel that s/he has learned from this mistake, has matured and grown past it, and s/he would really prefer not to be judged on the basis of this act.
    On the other hand,
    2. Part of history and the field of History has involved exposing major “mistakes” like the Soviet great terror, the Holocaust, the British suppression of the Mau-Mau rebellion, or the Indonesian massacres of “communists” in 1965, to name only a few. This list also includes concealment of financial malfeasance, including [to name only two important and related patterns] the Swiss banks’ concealment of the accounts of Nazis and other Germans who enriched themselves from confiscated wealth during the Holocaust, and the “offshoring” of money by wealthy and corrupt individuals in accounts in Swiss banks and also the Cayman Islands, Gabon, the City of London, and other enclaves to avoid taxation.
    All of these cases required anyone investigating them to have as Vanessa Varin put it, “advance knowledge” to investigate them.
    It has required decades of intense investigations and legal maneuvering and political action to expose these cases of concealment. Historians, lawyers, and government officials among others have dedicated much of their lives to expose these concealed facts not only for abstract principles of historical knowledge but also because these concealed facts also concerned legal responsibility for violations of laws, perpetration of atrocities and crimes, and large-scale tax evasion.
    With this ruling, people can try to use the internet to conceal their pasts, by means of submitting a form to Google. At first the internet provided this wonderful access to all kinds of information, yet now this court has authorized a major gatekeeper of the internet to undermine this basic advantage of the internet. Google and other groups and individuals tried to combat the Communist Chinese government’s efforts to limit access, but now every individual will be able to create his or her own “Wall” to obstruct access to information s/he wants concealed.
    Governments and corporations have long kept much information secret to conceal malfeasance, and there were many whistleblowers before Julian Assange’s Wikileaks and Edward Snowden’s exposures whose actions informed the public of necessary information and led to major beneficial legal reforms. We have read about these cases of hackers obtaining individual information from Target and other companies, but it may end up that such hacking tactics could become the only way to get information about large groups of people concealing their pasts.
    To expand on another of Varin’s points, who exactly will Google employ to evaluate these requests? Will they have a committee to decide? Will it include any historians or just computer specialists and lawyers? By what criteria will Google evaluate which historians to include and which views to accept? What criteria will Google and this committee use to evaluate these requests? What if they fall behind and millions of people send in requests?
    I think the AHA should take some sort of stand on this case. Thanks for reading my “sound off.”

    1. Jerry Bates

      This is a huge issue surpassing the interest of historians, but also impacts the public’s right to know. The ruling is not just a slippery slope, but a precarious one in which, if accepted, will most certainly provide politicians a further way of blocking justified citizen inquiry.
      We all live with mistakes from our past, but we hopefully learn from them. Covering them up perhaps serves the ego, but little else. Sure, they may be misused particularly in the realm of politics and business, but those bent that way will pursue their competitors dogmatically with or without the ban at most any expense when ordinary citizens would have little interest.

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