On a slippery slope

2014-05-19 00:00

BACK in 1989, scholar Francis Fukuyama caused a stir with an essay called The End of History?

In the piece, he argued that the end of the Cold War marked the end of history as we know it, and that the globe would see the inevitable rise of governments based on Western liberal democracy for ever more.

Nearly a quarter of a century later, his theory remains as controversial as when it was published, but one thing is certain, Fukuyama sure got the date for the end of history wrong.

That happened this week, with an astonishing ruling by European Union judges compelling search engines such as Google to remove links to information individuals find embarrassing.

The ramifications of this ruling — dubbed “the right to be forgotten” — could shake our digital age and open a new trend of revisionism, where uncomfortable episodes are bleached from history.

The judgment came in a case against Google Spain brought by a Spanish citizen who had been pressing — unsuccessfully — to have a major newspaper delete an auction notice of his repossessed home, dating back to 1998, from its website.

The applicant argued that the matter had long since been resolved and should not be connected to him through Google searches and the court agreed, ordering Google to remove links to the material on the Spanish newspaper site from its search results.

At the heart of this case are two competing rights accepted in most democracies, including South Africa: the right to freedom of express and the right to privacy.

The Court of Justice of the European Union has stumbled dangerously in balancing these competing rights and has, instead, lathered a slippery slope down which we slide to a revised and edited historical record.

In Spain, there are another 200 similar cases pending and Google is now bracing itself for a flood of deletion requests.

The court did allow for a public-interest defence, especially if the complainant is involved in public life, but this is still dangerous ground.

For now, the order affects only search engines, but only a small step is needed for this to go further and, for example, for media houses to be instructed to delete from their online archives material that others wish to be “forgotten”.

The guidelines on material that might be liable for deletion — material considered “inadequate, irrelevant or no longer relevant” — are also so vague that they open the judgment to a wide interpretation and abuse.

Would convicted rapists or paedophiles, for example, be able to have references to their criminality expunged from the public record years later?

And if so, whose interests would be served by this?

Anyone who works in the media will know that requests are common for material deemed embarrassing to an individual to be removed from the Internet. Such requests are routinely refused —

unless the information that was published is factually incorrect — on the grounds that one of the roles of the media is to document and record the events and news of our society, and that we will not, as a rule, edit this historical record.

The European judgment swings in the opposite direction in embracing this “right to be forgotten”.

Why stop there?

Why not ask newspapers to expunge reports from archived print editions in their own libraries, or even from archived collections in public and academic libraries?

A recent landmark South African Constitutional Court case explored similar issues.

Former Ekurhuleni metro police chief Robert McBride had sued the Citizen newspaper for calling him a murderer after his admitted role in the bombing of a Durban beachfront bar during apartheid, resulting in the deaths of three people and the injuring of 69.

His argument was upheld by the Supreme Court of Appeal, which held that because McBride was given amnesty, he was effectively absolved of the consequences of the crime to which he had admitted, including being labelled a murderer.

The Citizen, however, won at the Constitutional Court, which ruled that the fact that McBride had been given amnesty did not make the fact that McBride committed murder untrue.

Our Constitutional Court wisely made it clear that there is a limited “right to be forgotten” and emphasised the right to freedom of expression.

But under this week’s European ruling would a McBride in Europe be able to argue that such details of his past are now “inadequate, irrelevant or no longer relevant”?

This ruling conjures images of George Orwell’s Ministry of Truth and its historical revisionism in 1984.

Doublethink has never seemed more alive.

• E-mail: andrew.trench@witness.co.za

• Twitter: @andrewtrench

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