Published on medialaws.eu – 28 January, 2013

Teresa was only 16 when she was stabbed to death while jogging in the park. Giovanni, only a few years older, apparently killed her without a reason. After being sentenced to 18 years, Giovanni is now serving time in prison, while his picture remains imprinted on a website, among those of many other murdered women and their male killers. It is a constant reminder of a plague for the Italian society – more than a hundred of women were killed only in the year 2012 – but also a life-long ‘digital’ conviction for the criminals. Will they have the possibility not only to be forgiven by the society, but also to delete the digital traces of their past, after expiating their crime?

This is only one of the crucial questions lying behind the debate on the so-called ‘right to be forgotten’, whose foundations draw on the French droit à l’oubli (a right that allows a convicted criminal to object to the publication of the facts of his conviction after being rehabilitated). With the digitization of information and the exponential increase of publicly available information, the demand for a possibility to delete such information has also increased, thus leading the European Commission to include a specific “right to be to be forgotten and to erasure” in the Proposal for a General Data Protection Regulation. According to Article 17, “the data subject shall have the right to obtain from the controller the erasure of personal data relating to them and the abstention from further dissemination of such data”.

Although the proposal is not expected to become law within the next few years, its publication has sparked a heated debate. Opposite ideas of data protection and competing rights – such has the right to free speech and the right to privacy – divide experts and legal scholars on both sides of the Atlantic. The European Commission’s proposal has been criticized especially for the extreme technical difficulties to implement such a right, and for the amount of the sanctions, which may produce collateral censorhip and a chilling effect on freedom of speech (see for example Sartor). It is also not clear how this right should deal with personal data published in public spaces and shared by other online users. Can Facebook be requested to delete all the images related to a single person, regardless of how many people shared them? Should a statement posted on an open space such as Twitter be treated as a personal statement or simply as a publicly posted piece of information which cannot be deleted?

Nevertheless, whether or not a right to be forgotten will be established, these critiques do not exempt ourselves from a necessary reflection on our online existence. Digitization processes have radically changed not only data storage capacity – by allowing to create virtually unlimited archives – but also the very nature of stored information. As Lindsay summarizes, digital data are persistent, easily replicable, and also easily searchable for example  through online search engines.

These technological changes completely transform the historical conception of individual and social memory (see for example Rodotà). While numerous possibilities can arise from the digitization of information, in the long term the risk is to find ourselves trapped in the burden of a digital past which never fades away. The general argument against these worries refers to cognitive adaptation, meaning that the world is changing and we are simply going to adapt to these changes. “To say there should be a right to be forgotten – writes Mayes on The Guardian – is to say we can live outside society. We can’t”.

Yet, it is very likely that this adaptation process will not be at all as smooth as its proponents claim. Mayer-Schonberger makes this point clear in its book Delete (2009): “A few centuries from now humans will laugh at the difficulties of digital remembering that we face today… That may be true, but I am not that interested in what will exist a few hundred years from now. I remain worried about how humans will cope with the decades of painful (and perhaps violent) adaptation in between”.

Whether the remedy to this pain will be either a technical solution – such as an ‘expiry date’ for all files, as Mayer-Schonberger suggests – or a legal solution – such as a clear implementation of the right to be forgotten – still remains a matter of harsh debate. However, what we cannot avoid to do, in the meantime, is reflecting on our digital existence and becoming aware of our digital traces. Before it’s too late to regret, or to forget.