Should misdeeds be forgotten?
In the digital age, it is far easier to dig into a person’s history than ever before. A recent ruling in Europe now allows people in that region to have certain online listings about themselves removed. But is such a right fair to all?
one of the more bizarre emails I ever received in my life was from the wife of a manager of a pharmaceutical company. Her husband had been an active participant in cartel activity in the country. According to the Competition Commission’s findings, the cartel had operated between 1993 and 2007. During this time it had rigged a number of billionrand government tenders to supply millions of intravenous drips to public hospitals.
The firm was prosecuted in 2008 and at the time, I covered the case as a journalist for the Mail & Guardian. A few years later, I received the email in question.
The wife of the pharmaceutical company manager bemoaned the fact that her husband had been out of work since the companies had been brought to book.
“Every time he goes for an interview, they type his name into a search engine and your article Gangsta Pharma pops up,” she wrote. “Needless to say he doesn’t get the job.”
What she wanted from me, was for the article to be removed from the Mail & Guardian’s website so that it wouldn’t “unfairly” impact his future job prospects, as it had done for the past few years.
I was shocked at the arrogance of this request. She didn’t feel her husband should have his past indiscretions permanently on the public record. Despite the fact that her husband had participated in cartel activity, prejudicing public hospitals, she was of the opinion that now that the companies had been prosecuted, his reputation didn’t deserve to be tarnished.
To be honest, while the request did shock me, it also reinforced – for me – how important it is to name and shame guilty parties. Every time I wrote of a new cartel being prosecuted by the competition authorities, I made sure I scoured affidavits so that any staffer implicated in collusion was named in my articles.
In my opinion, when you engage in collusive behaviour on behalf of your employer, you take the risk of having your reputation tarnished. You should feel relieved that it ended there and you aren’t in jail.
This is why I was critical of the Competition Commission and department of economic development when those involved in the construction cartel were prosecuted. Settlement deals were negotiated with the guilty construction companies in such a way that implicated staff were never named and shamed. In fact, they were protected.
Rather than ensuring full transparency, politicians used the commission’s cases against the construction firms to force greater transformation in the sector. The result is that a number of years later, some of these guilty executives are still in charge of these companies, an outcome I find wholly unsatisfactory.
Recently, as I was reading about the legal battles over Europe’s “right to be forgotten” ruling, I remembered that galling email. This ruling allows private citizens in that region to make requests for search engines to delist inaccurate, inadequate, irrelevant, excessive or out-ofdate information that can be retrieved by searching for their name.
The ruling was originally handed down in 2014 by the European Court of Justice, which did clarify that the right is not absolute and needs to be balanced against rights like freedom of expression and the right of the media to publish information in the public interest.
The ruling is currently the subject of a
When you engage in collusive behaviour on behalf of your employer, you take the risk of having your reputation tarnished.
legal challenge by Google, with the matter having been referred back to Europe’s top court after a battle in the French courts between the search engine and the French data protection agency, CNIL.
CNIL is pushing for Google to make these delistings apply globally, across all web domains, rather than geo-limiting delistings to the person’s home territory.
Google has argued that, since 2014, it has worked hard to implement the right to be forgotten ruling in Europe, but believes that each country should be able to balance freedom of expression and privacy in the way that it chooses, not in the way that another country chooses.
Whatever the outcome of this process, it will set an important precedent.
In an era of fake news, I support the right of a private citizen to have inaccurate information about them removed from search engine results. However, I know enough about how the law favours the moneyed and powerful to be aware that there is massive scope for abuse of this ruling.
Especially from people like the pharmaceutical company manager’s wife who would rather her spouse’s inconvenient past indiscretions disappeared so he can get on with his life, without shame or repercussions. ■