The Right to Remember- Will the right to be forgotten endanger privacy and human rights in Europe?


By now everyone has heard about the ECJ court ruling granting a “right to forget” to EU citizens, though I suspect few have actually read the decision. In Europe, privacy is a human right. And as a human right, privacy violations always implicitly harm the individual. The harm is to human dignity at a minimum. Or so is the European construction.

And this is fine. EU privacy law is quite legitimate because it is a reflection of its history and its culture. I practiced privacy law in London for four years. During that time I came to understand and respect EU privacy law. Some in the US may argue strenuously against the EU privacy view, but US privacy law is no better or worse. It reflects the history of the US and its values. And that is just fine as well.
In Europe, much of the public policy behind privacy law is to prevent the recurrence of the devastation from two world wars. You need to look no further than to compare the EU’s definition of sensitive data with the lists of groups targeted by Hitler, Mussolini, Franco and others. Privacy and human rights have been linked since the first European treaties that began the march toward what we today call the European Union. To rail without thought against European privacy law is to disrespect the millions that died in two world wars.
The ECJ ruling troubles me for this very reason. Is it not core to individual privacy to have the right to remember? I fear that the pendulum in Europe will swing quickly and too far to the other side and send the collective memory of ills that should never be forgotten into oblivion, thereby potentially destroying the very human rights that EU privacy law is designed to protect.
Let’s travel back in time to one of the pivotal moments that contributed the development of modern EU privacy law- August 22, 1939. Pursuant to a secret agreement between Hitler and Stalin, Germany and Russia planned to invade, conquer and divide Poland (and a few other things). For Hitler, it was to be the beginning of the realization of his dreams for a third reich. For Stalin, the purpose was to quash the potential support for the Polish population in Ukraine. Since 1933, Stalin’s policies of mass murder to further the Communist revolution had killed millions of Ukrainians through starvation and exile to Siberian gulags. Stalin feared Poland would invade to defend the interests of Ukrainians of Polish ethnicity (sound familiar, Mr. Putin?).
When Germany invaded Russia, the people of Ukraine suffered again as Hitler’s armies swarmed through their country, killing three million, exporting an additional two million for slave labor to Germany. The people of the Ukraine suffered again as Stalin’s army pushed out the Germans. Never having trusted Ukrainians, Stalin again imposed a reign of terror, particularly against Ukrainian nationalists, whom he feared the most. The massacres continued. (To learn more on this subject, read the amazing and disturbing book, Bloodlands: Europe between Hitler and Stalin, by Timothy Snyder.)
But history is written by the victors. Today, monuments stand throughout the former Soviet republics, including Ukraine, to the Great Patriotic War and victimization of the Soviets at the hands of the Nazis. Purposely written out of history in Russia, and to a great extent, out of the collective memory, are the horrors perpetrated by Stalin and the USSR’s role in starting World War II and the enabling to a large extent of Hitler’s European domination. (Many historian’s question whether Hitler would have been able to conquer Europe without Stalin’s cooperation.)
Today we see the results of this “forgetting”. Ethnic Russian’s from eastern Ukraine call Ukrainian’s from the western part of the country, “Nazis”. I wonder if they are aware of their own history? Or has it been conveniently forgotten for them?
The Tartars of the Crimea have not forgotten despite Stalin’s vicious efforts (and subsequent rulers of the USSR). This remembering has come at great cost to the Tartars and it may continue to cost them.
The Tartars wish to remember. Many Ukrainians wish to remember. The Poles of Kresy (a region in Poland annexed to the USSR/Ukraine in 1945, that had a prewar population of 5.2 million, but a postwar population of 1.8 million after the ethnic cleansing by the Nazi Germany, USSR and Ukrainian nationalists) wish to remember. These are groups who’s humanity and dignity have been stripped from them by forced and convenient forgetting.
Look at the role of remembering in South Africa and Rwanda in healing and preventing further human right’s abuses (sound familiar?) through the role the reconciliation processes.
I hear many in the EU cite the “public interest” test set forth in the ECJ ruling. But ruling political parties change- look at no further than the most recent EU elections in which right wing conservatives, nationalists, anti-immigrant and anti-EU parties made large gains. What is in the public interest one day may be viewed very differently by the new ruling party the next day. Remembering is an important part of majority rule with minority rights.
There may be an even greater risk in countries that are developing EU-like privacy laws in adopting a right to be forgotten. Their civic institutions may not yet be as strong as those in the EU (or as strong as I hope they are in the EU) possibly leading to easier abuse of the right to be forgotten.
Some may argue that the concern I state here is to divorced from data protection and the processing of personal information. I hope my examples of Ukraine, Poland, Rwanda, and South Africa, and the experiences of the Tartars persuade you that proceeding with caution is advised. I will agree partially with this critique, however, because I am not just talking about data protection, but about human rights in general. The right to remember is a human right. Let’s not forget that. Otherwise, we do a disservice to the millions of Europeans who died in two world wars.

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