Should mis­deeds be for­got­ten?

Finweek English Edition - - On the Money - By Lloyd Gedye ed­i­to­rial@fin­week.co.za

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. ■

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