Eduardo Bertoni is Global Clinical Professor at New York University
School of Law and Director of the Center for Studies on Freedom of Expression
–CELE- at University of Palermo School of Law in Argentina.
Recently, I was discussing with fellow
colleagues from Latin America the implications of the decision of the European Union's Court of
Justice that
establishes the "right to be forgotten." One of them pointed out that
the content of this "right" notwithstanding, the name itself was an
affront to Latin America; rather than promoting this type of erasure, we have
spent the past few decades in search of the truth regarding what occurred
during the dark years of the military dictatorships.
My colleague certainly had a valid argument. If those who were involved
in massive human rights violations could solicit a search
engine (Google, Yahoo, or any other) to make that information inaccessible,
claiming, for example, that the information is extemporaneous, it would be an
enormous insult to our history (to put it lightly). However, this seems like an
opportune moment to offer a few additional reflections that demonstrate that
the hasty discussion being had in the wake of this ruling has much more harmful
implications. Given that this "right" has begun to permeate countries
of our region in the form of legislative reforms and judicial requests to
implement it, I think these reflections could contribute to the global debate.
Let's begin with the ruling itself: the Court of Justice of the European
Union passed a sentence this year in which it declared that "[...] the
operator of a search engine is obliged to remove from the list of results
displayed following a search made on the basis of a person's name links to web
pages, published by third parties and containing information relating to that
person." The Court thereby affirmed what many are referring to as the
"right to be forgotten." In reality, it's very important to
understand that all the ruling establishes is "the right to not be indexed
by a search engine." In other words, the information intended to be
forgotten is not erased, but rather remains on the site where it is. The only
obligation search engines have is that we not be directed to that site.
Therein lies the first problem for those supporting a "right to be
forgotten," which, in reality, does not forget anything. It only
exacerbates the existing differences between those who know where to find the
information and look for it directly, and those who do not, and therefore need
a search engine. Some cannot access information, while many others can.
The second problem is equally grave: the Court of Justice leaves it to
private companies that manage the search engines to decide what we are able to
encounter in the digital world. Unfortunately, Google -- the primary target of
the ruling -- has decided to accept the enormous responsibility of serving as a
mechanism for censorship. In fact, news media outlets, including the BBC and
the Guardian, have already begun to protest Google's removal of several of
their stories in compliance with the "right to be forgotten" laws.
Third problem: there persists the somewhat magical notion that once
"right to be forgotten" laws are on the books, information will
disappear from the Internet. Bad news: in the digital age, nothing -- or nearly
nothing -- disappears. In reality, if a site is not indexed for a search
conducted from a computer in the EU, which is what the ruling orders, there is
a fundamental asymmetry in information between someone sitting in Madrid
searching for a certain piece of information and, say, someone in Bogota
administering the same search. This asymmetry generates an unacceptable
disparity between this planet's inhabitants.
Information asymmetries, inequality and private censorship are the
common denominators of Europe's ruling and of the proposals cropping up from
other continents. But if these problems are so easy to detect, why are we even
discussing the "right to be forgotten"?
Perhaps we find the answer in what Peter Fleishcher, a lawyer
specializing in privacy and advisor to Google, recently posted in his blog:
"The 'Right to be Forgotten' is a very successful political slogan. Like
all successful political slogans, it is like a Rorschach test. People can see in itwhattheywant."
On the one hand, judges and legislators, perhaps without exhaustively
considering the consequences, "see" in this right the need to protect
privacy; on the other hand, defenders of freedom of expression, access to
information and the search for the truth "see" its disadvantages.
Perhaps, the answer is that of Jonathan Zittrain, author of The Future of
Internet and How to Stop It. Zittrain suggested that the path forward is
probably not a legal right, but rather a structure that permits those who disseminate
information to build connections with the subjects of their discussions. In
practical terms, that would imply constructing mechanisms for facilitating
dialogue between people involved in information management. When people feel
wronged by information available about them online, they should be able to
contest this information directly, and the search engine itself should have an
instrument to enable this process. More information, not less. That way, we can
stop discussing the right to be "forgotten," which is misguided in
many regards, including for its offensive name.
Articulo publicado en The Huffington Post disponible haciendo click aqui.
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