I understand why the top European court has insisted that Google remove links upon request. We’d all like some things on the Web to be forgotten. There are a few things I myself wouldn’t mind having removed. But, beyond the practical problems, I think the Court’s decision frames the question in a misleading way.
The language used puts it in terms of a mental condition: being forgotten. But, of course that’s a metaphor, because removing a link from the search engines doesn’t make anyone forget it. Rather, the Court is asking for a right to be ignored, and behind that “right”—in quotes because I’m not convinced it rises to the level of an actual right—is yet another metaphor: The Web is a type of publication.
Even within this framing, the decision is troubling. If the Web is a publication, then compare it to a newspaper. Suppose The New York Times reported something about Jane Doe that Jane wants removed. Suppose the court told The Times that it could keep the article online, but it must not show up as a result when someone searches on NYTimes.com for “Jane Doe.” Even if there were clear instructions about the type of information that a person could demand be de-indexed at NYTimes.com, The Times might well argue that such erasures damage the integrity of The Times as a paper of record. And, by the Court’s logic, why shouldn’t links be removed from any other articles on the site that refer to the offending one, including possibly articles that correct the original one? Should all links to the offending article be removed? Could a person demand that all references to his arrest and trial be unlinked if he’s not found guilty? I can see the logic of that, but I can also see the social damage done by burning holes in the fabric of collective memory.
Now, you might reply that the comparison of the Web to a newspaper site is misleading. You’re right. The Web is not really much like any publication that ever existed. No centralized editorial board or policies. Articles clickably linked to one another. Global. Participatory. Thinking of the Web as a publication sometimes help, but it can also get in the way.
Instead, suppose we were to think of the Web as a public space. Now the concept of “forgetting” makes more sense: If you saw me naked and riding a St. Bernard in the street, both you and I would wish that you’d forget you saw it. But I couldn’t insist on a “right to be forgotten” because there’s no way to enforce that when it comes to actual memories, no matter how devoutly you wished there were. What we do in public, at least in the real world, is assumed to be public knowledge. That’s just the way it is.
But, just as the Web is not simply a publication, it’s also not simply a public space. The Web is a weird sort of public space that we participate in through visible or audible marks: We post a video, write a blog post, leave a comment. It’s a public space created by published items. We thus lose a fundamental distinction present in the real world: the difference between a public space in which events occur, and the set of publications about those events. These publications (the videos, blog posts, chats ... the whole nine yards) only create a public space because the posts are densely linked to one another. De-linking them unravels not just the account about what occurred in the public space, but unravels the public space itself.
Now, none of this resolves the problem that the de-centralized and linked nature of the Web means that published items do not over time naturally become inaccessible. If we can scope what sort of postings citizens have a right to obscure, and if we can come up with pragmatic ways the search engines can be required to delete those links, fine. But we should recognize that such erasures hurt our new public sphere in a way that withdrawing items from the print world does not hurt the old public sphere—because our new public is created by linked publications the way the old one is created by space, streets and parks.
I don’t know the answer to this problem. I just know that as we feel our way toward an answer, we should be careful that our metaphors do not lead us astray.