What always baffles me about the right to be forgotten is that the issue never is if something should truly be forgotten - it should not, it will stay on record, in news articles etc. - but always if the offending piece of information should be removed from search engine indexes.
I find this really troubling, because just making it harder to find does not remove it and shifts power to persons who can make better use of search/indexing tools or have the means to hire someone who does.
It's a reasonable, but imperfect analogue for the old obscurity by sheer quantity.
If you are a regular employee seeking a new job, it shields from idle searches turfing up minor offences from years or decades ago. Europe seems to embrace the possibility of rehabilitation, and I think it's fair that shoplifting or a suspended sentence eventually goes away. In this context, plenty of roles would be exempt from the expiry, e.g. joining the police, or working in the legal system, among many others.
Neither case will prevent some major politician, business leader or celeb being investigated if they come under enough of a cloud. Lack of search just makes it a little less trivial. If your journalist really thinks there is history to be found you send an intern or three to trawl through 30 years of press archives at the local reference library. How it used to be done.
To me, that seems a reasonable balance and sensibly protective of the general population being discriminated against for having done something minor and daft 25 years ago.
It just seems like a sloppy solution to do this at search engine level, especially when most of these search engines are outside of european jurisdiction.
I think it would be much more sensible to require the actual sources to anonymize their online content after a certain time or just whenever something like this goes to court instead of having private companies keep registers of "forbidden" links.
Hmm, given just about everything is found via search, that seems a reasonable place. Your alternative might have someone needing to request forgetting from dozens or hundreds of sources all over the place.
But there isn't just one search engine and you will still have to submit all the urls of these possible hundreds of places to all of them so they can be blocked.
It is a really hard or maybe impossible problem to de publicize something on the internet. Though I do think clear laws with due process would work much better then using middlemen like the search engine providers to police on their own merit.
I agree. I does not remove the information, it just makes it harder to find. If google in the future truly lives up to it's ideal and gives me exactly the information I was looking for, then removing the information from the index would enable one to rehabilitate and not be discriminated against afterwards.
> [...] violated his rights and his "ability to develop his personality,"
That's a rather poor translation of "Recht zur freien Persönlichkeitsentfaltung". It's not really about developing your personality, it's the right to live freely and pursue your personal life goals; something more akin to "the pursuit of happiness".
I'm a bit torn in this case. I'm generally for the right to be forgotten, especially in cases like this one, after the criminal has served a lifetime in prison and has been re-integrated into society. However, the decision has some strange aspects to it and elicits the usual ignorance about the Internet.
From what I've read, the judges primarily bemoaned that it is so easy to search for his case by his name. Instead, the German magazine Der Spiegel is supposed to kind of obfuscate the original articles in their online archive, making discovery harder, but not necessarily to delete them or alter his name in them. The idea is that the stories should be harder to find in searches by name. In my opinion that makes no sense, neither technically nor from the point of view of the 'right to be forgotten' - and in a case like this, the stories are all over the net anyway.
> The idea is that the stories should be harder to find in searches by name. In my opinion that makes no sense, neither technically nor from the point of view of the 'right to be forgotten'
In the case of the "right to be forgotten" no kind of obfuscation is needed from the publisher. Article stays where it is in its originality the only thing that happens is that article is no longer shown in search results of search engines when searching the mans name. If you search for the name of the victim those articles still might show as search results.
Makes perfect sense to me. The aim is not to eradicate all evidence of the crime. The aim is just to allow him to lead a normal life where he doesn't have to worry that a single Google search of his name would lead to him getting fired.
From my reading of the 1982 Spiegel article (which you can still find if you google his name, Paul Termann) he was 44 when he committed his crime. He’d be 81 now. I don’t think getting fired is his concern.
The question is whether the court would be happy with just this. Does the verdict say it's up to Der Spiegel to get this unsearchable, or up to some search engines like Google to remove it from their indexes?
BTW: TIL that Yandex also supports <noindex> HTML tag:
That's not the point. The BBC was not forced to redact the name, yes. This still left the BBC free to redact it, or not hint at the name at all (like the Guardian). The BBC seems to have made a conscious decision to make the case easier to Google. They didn't need to do that.
In the UK people in criminal cases are always fully named (except minors).
In fact, at least in local news it is customary to publish name and residence location (to avoid confusion).
E.g. a newspaper article would say that "John Doe of Dodgy Street, London has been sentenced today at the Old Bailey to 10 years for drug trafficking", often with the police mugshot as illustration. My local news site runs an article every month with these details for all the people sentenced locally during the past month.
> In the UK people in criminal cases are always fully named (except minors).
If that were some sort of important guiding principle of all of the UK press in general, you'd think that the BBC would have dug up the person's name in this case. I don't have much data to go on, but I thought that the BBC might apply different standards than tabloids or the local news.
The interesting point here is that the BBC refrained from naming the person, not that they named the other details of the case.
As said, in the UK it is not viewed negatively to name people and specifics in criminal cases, quite the opposite: It is something the public expects and demands.
Again, the Guardian's readers don't seem to demand this. And the BBC's readers don't seem to demand it either. You might be confusing tabloids with all of the UK press.
Well that's disappointing. I've generally been in favour of right to be forgotten as in a UK context it aligns well with the Rehabilitation of Offenders Act.
A minor offence would be legally forgotten quickly, a murder would carry a sentence of over 4 years which would never be eligible for forgetting. It seems odd to me to clear something quite so serious.
I find interesting that while the "right to be forgotten" does not prevent the person from being named, all the articles I have found on Google are careful not to name him (and I'm not talking about German articles, but articles in English from non-German sources).
This strikes me as self-censorship.
As an aside, it's also interesting that a person sentenced to life for murdering two people in 1982 was freed in 2002...
"Life" in Germany typically means between 15 and 25 years (and there's no such thing as stacking life sentences). Nobody is ever kept permanently incarcerated except for very very very extreme circumstances where they are considered still dangerous, and must be kept in a separate facility that's technically not a prison sentence. The goal of the justice system in Germany is reform, not retribution.
The "self-censorship" is done out of respect for the spirit of the law.
Your comment is basically correct, let me add a little correction:
You're talking about "Sicherungsverwahrung", which has indeed that effect, but a regular life sentence without Sicherungsverwahrung can also be indefinitely long, until the person dies.
There are also perodical checks whether the prisoner is still a danger to society or whether he can be released, but it is possible to stay in regular prison without Sicherungsverwahrung forever.
In Germany and most of Europe actually you get a life sentence for murder.
Life sentence is 20 years, (a bit less if you show remorse). Unless you are deemed criminally insane then you won't come out maybe ever.
Also in the EU the name of criminals are usually not printed or published in any other way unless it's a big thing like murder of multiple people or massive fraud.
Tabloids sometimes do print the names but usually only with the first letter of their last name
> Also in the EU the name of criminals are usually not printed or published
That is not true at all.
Criminal trials are public and people are fully named in the media in many countries unless there is a specific court order against it (which I have never heard off except for minors).
It's part of a voluntary press codex - or, better to say, an interpretation thereof - to not fully name suspects of crimes. Every reputable newspaper adheres to it and even a few less reputable ones, but the yellow press/tabloids don't.
This is because of the European Court of Human Rights that prevents courts from handing hard life sentences. There must be a point when prisoners have to become eligible for parole and have the possibility of being released.
The UK has had issues about this and has had to find a way to adapt: Whole-life ordesr have to be reviewed after some time in order to give a chance of release (at least on paper).
For the same reason, e.g. in France life sentences come with a maximum of 30 years before becoming eligible for parole. What they do is then that they simply keep denying parole for prisoners they want to keep inside.
It's not a lie, it's a life sentence, with early release granted by parole. They remain on a parole licence the rest of their life. A whole life tariff, i.e. imprisoned for the rest of their natural life is very, very rare and saved for the most extreme cases.
That's the UK context, but most of Europe seems to operate similarly.
Justice system in Europe is not a business, like it is in US, or a way to inflict a punishment, it is a rehabilitation process: if you prove you have changed, you can benefit from reduced sentences, furlough for good behavior and/or early releases.
If you haven't, you stay in jail.
Think about the U.S. system where people can be taken to custody for murder but can bail out, is that better in your opinion?
In Italy, for example, to keep mob affiliates in jail in solitary confinement, so they can't speak with the outside, they had to make a specific law, otherwise it would not be possible within the Italian prison system.
The justice system is, and should be, always primarily about punishment. Governments who forget that do so at their peril. Punishment isn’t just why we have a justice system — there’s a reasonable case that it’s why we have government at all!
Humans have a strong natural instinct towards justice — when soneone wrongs us, we want to take revenge. In a state of nature this of course leads to endless and bloody feuds, so at some point it became more sensible to devolve the job of taking revenge to some kind of king or government, to ensure that revenge is taken exactly once instead of becoming a never-ending cycle.
This worked pretty well for thousands of years, but in the last century or so it has been falling apart. Soft-headed Government types have started to believe that the actual purpose of the justice system is rehabilitation, not justice, and as a result justice is rarely if ever served. Ask victims of crime if the sentence given to the perp is anywhere near what they’d choose, and they’ll say no. And then, the sentence that is given rarely gets carried out, like this scumbag who was sentenced to life and released just twenty years later.
The right to revenge is one of the most important human rights of all, and it is utterly neglected in western societies these days. A proper justice system would have a lot more crooks dying in jail and a lot less crime being committed.
> The justice system is, and should be, always primarily about punishment
Not in Europe, since "Dei delitti e delle pene" (On Crimes and Punishments ) from Cesare Beccaria.
It was 1764, we were already aware of that.
Justice is not a way to inflict punishment, the sentence, as Beccaria put it "should be in degree to the severity of the crime" and should work as deterrent, not as retribution (which is usually the case in US especially the death penalty, that have the purpose of giving "an eye for an eye" to the victim's family).
> Humans have a strong natural instinct towards justice
No, they don't.
Homō hominī lupus, men are very social animals, it doesn't mean they lean naturally towards justice, they just defend their communities against other communities.
> This worked pretty well for thousands of years
It didn't actually.
That's why we constantly reformed our justice system.
Think about the code of Ammurabi, does this work in your opinion?
"If the wife of a man has been caught lying with another man, they shall bind them and throw them into the waters. If the owner of the wife would save his wife then in turn the king could save his servant."
It never really worked, especially for the regular folks, still today has a lot of flaws let alone thousands of years ago. In Italy it was legal to kill the wife that cheated (but not the husband who did the same), it was called "honor killing" and it was abolished only in 1981.
So, no.
> The right to revenge is one of the most important human rights of all
It is its greatest fault indeed.
And it is what makes USA a country where the risk of being killed by a stranger is 10 times higher than in Italy (5.63/100,000 vs 0.55/100.000), it is higher than many third world countries or countries that are at war like Sudan, Kenya, Niger, Libya, Syria or Iran.
This is btw. normal procedure in Germany, culpits are usually not named, with the exception of boulevard media thinking they have to break that rule in some cases. If a name is printed it is usually shortened to hide the identity of the suspect (e.g. Franz M.)
This probably has its roots in the past, with Nazi lynchings were justice was just skipped and people thought they had to carry out a sentence themselves.
Although I understand the emotional conflict that arises from situations like these, it gives me actually confidence in the justice system of the nation I currently live in: if they even defend the rights of a murderer, this indicates they will also take the privacy of everybody else seriously.
Edit: I also don’t feel I need to know whether e.g. my neighbour served a prison sentence — the goal of german prisons is rehabilitation and they are actually not bad at that.
>>it gives me actually confidence in the justice system of the nation I currently live in: if they even defend the rights of a murderer, this indicates they will also take the privacy of everybody else seriously.
He murdered people on a yacht - maybe he's rich? At least an alternative explanation for why his case was honoured by the highest court.
Suing in Europe is pricey and time-consuming, so I would not say your privacy would be taken seriously "by default" so to say.
Sueing is pricey and time-consuming, but usually the losing party has to carry the cost, so people are more willing to sue against powerful entities if they have a realistic chance of winning
What you are effectively proposing is an abandonment of seperation of powers, a cornerstone of a free society. Seperation of powers also means it not up to you to decide when an offender has finished serving his/her sentence.
Life means a Life sentence, as in you are never free. That does not mean you spend the rest of your life inside a prison.
This murderer will still be under supervision until they die, will have particular restrictions about how they live their life, and will be recalled to a prison for almost any minor offence. However the parole board will have made a decision that they are unlikely to offend again and so it is better for society, the taxpayer (and the individual) to allow them to live outside of the prison walls,
I don't know the details of this case, but, the guy was caught and served his time. He has been punished for what he did, and hopefully he's been rehabilitated and can reintegrate back into society.
That's a lot more difficult if any employer (for example) googles his name and decides to not hire him because he did something thirty years ago.
He's asking for a change in search results, that won't erase what he did and / or his conviction.
I find these discussions pretty boring, because virtually none of the commenters have ever even read the two or three short articles of our Grundgesetz that are at the center of this legal question.
I'm not talking about familiarizing yourself with standard legal doctrine or landmark constitutional court rulings. Just having a little respect for the fact that the US Constitution does not apply.
The right to be forgotten is not decided on a whim by a few judges, according to their personal preferences, there is legal text surrounding the issue.
We Europeans who criticize your Second Amendment may be shallow, as well, but we have usually at least read something about a "well-regulated militia" or the "right to keep and bear arms", so we understand where you're coming from, even if we think that's nuts.
> none of the commenters have ever even read the two or three short articles of our Grundgesetz
... referring to "two or three" specific articles without providing a link, or at least the numbers so we can look them up, is not as useful as it could be.
The Grundgesetz too is written the way it is for reasons, and IMO it's generally better to go back to them.
Someone (a chief of police somewhere, IIRC) once put it like this: "We have a tradition in this country that you're sentenced by a fair court, and once you've served your punishment, you have paid your dues. Adding extra sanctions afterwards threatens the fairness of that system." That's a poor misquote on my part, but good principle on his/her, and legible in a way that the Grundgesetz doesn't try to be.
Yes, but the question of how a society treats someone who is responsible for an action is orthogonal to whether or not a society records and remembers that an action happened.
The right to be forgotten tries to alleviate the symptoms of the first question by addressing the second question.
It's similar to addressing homelessness by banning the reporting of homelessness. There are complex questions that need to lead to major societal change that can't be solved by removing data from the public record.
The right to be forgotten doesn't ban reporting, it blocks two-second searches of someone's name, and thus raises the price of finding something hidden in someone's past back to the level it used to have before Google came along with effective web searches. You can still go down to the public library and do the same search as you could in 1995 or 1971. What Google changed and the right to be forgotten changed back is the availability of cheap, quick searches.
The reporting is still legal, so I can't see significant similarity.
No, it's about the individual. Once we try to reintegrate somebody into the society they deserve a chance to live without being discriminated against by their past action (after they have served their punishment).
So I think it's entirely different than banning the reporting of homelessness. It's similar to deleting your past status as homeless once you've made if back from the streets (assuming such a register exists and should exist...).
It's also entirely different than banning statistics about murders, past murders or the trend of murdering people. These statistics are not about the individual.
Shouldn’t investors be able to keep little journals in their pockets about prior fraud, and to chat freely about it in their meetings?
Shouldn’t a newspaper or public forum be able to discuss a wrongdoing in the context of a history of wrongdoings?
The public’s clarity is what’s being traded here. I would argue that the public and any relevant professional groups should never forget fraudsters such as the CEO of workriot or theranos.
Another very dubious aspect of the right to be forgotten is that so as long as outside parties exist in a complicated multipolar world, some very major and relevant parties such as landlords or investors will likely play with such knowledge and also be able to afford cover. Meanwhile everyone else has less clarity on the situation.
Of course it's a tradeoff and needs to be balanced. The right to be forgotten was never about censoring information itself, just making it less available (e.g. newspapers do not need to erase names etc.). The more publicity your case had, the less like it gets to be forgotten.
But I think you touch the issue. I don't think the answer to your questions is always an unconditional yes, the opposite question can also be agreed upon. There is no right or wrong. If our goal as society is rehabilitation and reintegration of offenders (and not punishment as an end to itself), then starting with a clean slate after serving your sentence is a fair solution. Shouldn't people have the chance to leave their past behind and not be followed by their mistakes for the end of their live? They only have one. But if we choose this path, we have to be realistic, since your question are certainly important consequences.
> The public’s clarity is what’s being traded here. I would argue that the public and any relevant professional groups should never forget fraudsters such as the CEO of workriot or theranos.
I agree, but I think is on the "should not be forgotten" part of the balance.
I think it may highlight cultural differences. In another comment "freedom of speech" in germany was brought up. It's a similar tradeoff there and we rely on a reasonable legal system to implement it correctly and balance the tradeoffs. I agree even stronger with our approach on "freedom of speech" and certainly do not want rights as phrased for example in the US constitution. In my point of view it's an important lesson from our history in germany. Its something I very, very strongly agree with.
It's a simple text that fits on a single web page. Put the word into the search engine of your choice and off you go.
Honestly, if one a) isn't capable of grasping the idea that different countries have different foundational laws, and b) isn't capable to find the relevant passages of the Grundgesetz without external help, one should really double check whether commenting on the case at hand is a net plus for the community.
They are right there in the court ruling you linked below, in the first sentence of the ruling (starts with "Das Urteil" in German).
The court also detailed the reasoning in the paragraphs below, always referencing the actual laws. Search for "GG", which is the abbreviation of Grundgesetz.
> They are right there in the court ruling you linked below, in the first sentence of the ruling
The first sentence of the ruling says that the paintiff's rights under articles 1 and 2 were affected, but that doesn't mean that those articles are the only relevant parts of the Grundgesetz.
> The court also detailed the reasoning in the paragraphs below, always referencing the actual laws.
Yes, I've had the idea of looking at that myself. That references at least articles 1, 2, 5, 20, 23, 24, 25, 26, 59, 93 GG, as well as at least the European Convention on Human Rights, the Treaty on European Union, and GDPR.
If the OP's point was that this ruling follows directly from "two or three articles" of the Grundgesetz, the OP was wrong -- even if speaking figuratively. The actual reasoning is based on much more than that, including EU law. Unsurprisingly, the issue is much more complex than the OP made it out to be, otherwise it never would have made it past the appeal before the Bundesgerichtshof anyway.
There was a chance for the US Constitution to apply, in translated form of course, when West Germany was initially created. I'm really sorry that we didn't share. Freedom of speech is something worth fighting for. The fact that the people currently running your country can legally oppress the speech of their political opposition is terrible. Politics shouldn't include the possibility of prosecuting your opponents for campaign speeches.
Fair enough, and I don't understand why America never tried to export its Constitution and political model, they pretty much were happy with the economic model to conquer the world.
Is that covert racism (although "racism" is the wrong word, since there is no ethnical US race – maybe "exceptionalism" as in "only our superior people can actually make it work")?
I mean I understand when it comes to Germany. The de-nazification was heavily based on censorship. All newspapers were banned. They were later allowed to re-open, with a license by the military government. Freedom of speech was certainly not something that America wanted in post-war Germany. The same with Japan (whose civil law is so close to German civil law that there are multiple professorships in Germany in comparable Japano-German law studies).
But elsewhere? All those nation-building instances that were not directly related to Nazi Germany? All those new eastern-European states, the Balkan states etc.? They draw heavily on European examples, but very rarely on America. I don't feel that geographic proximity alone could explain that.
Turning your comment around: why didn’t those other countries model their constitutions after the US?
It certainly does not have a copyright
Maybe those values were not part of the founding culture - nothing worse than throwing empty words into a foundational document
In the US you see people fight to this day for the 1st (and 2nd) amendment, not because they were written down 200+ years ago, but because it’s part of the culture
> why didn’t those other countries model their constitutions after the US?
Fair point. I started my comment about nation-building efforts by America, where America was dominant and the country in question had virtually no way to decide otherwise (like with Germany).
But when I was done editing and re-editing it I had extended it to all kinds of newer countries, and your point is well taken there.
Not sure if that's what the parent meant, but there was a somewhat recent case of a German far-right (NPD) politician sentenced for denying the Holocaust in a campaign speech. It made HN at the time: https://news.ycombinator.com/item?id=21155849
>>...when he shot and killed two people and severely injured another during a row.
My two cents: maybe the memory should be longer for a few things, stealing a loaf of bread or smoking pot is quite different from murders. In many countries cold blooded murders give you a life sentence or death (either by the state--or victim's family members when the state does not act) so maybe this guy should have had the chance to file such an appeal.
From the sounds of this it wasn't actually murder, it was manslaughter. Murder requires being premeditated where this sounds like it was heat of the moment.
Personally I think we should either rehibilitate and then forget in order to give them a chance to contribute to society, or keep them in prison. The idea of releasing people but then villifying them will basically just channel them back into the criminal system again. Studies have shown the best way to prevent crime is with reintegrating them socially. The biggest risk factors are:
It could be either depends a lot on the context that led to the altercation.
"Voluntary manslaughter
Sometimes called a crime of passion murder, is any intentional killing that involves no prior intent to kill, and which was committed under such circumstances that would "cause a reasonable person to become emotionally or mentally disturbed". Both this and second-degree murder are committed on the spot under a spur-of-the-moment choice, but the two differ in the magnitude of the circumstances surrounding the crime. For example, a bar fight that results in death would ordinarily constitute second-degree murder. If that same bar fight stemmed from a discovery of infidelity, however, it may be mitigated to voluntary manslaughter."
I find this really troubling, because just making it harder to find does not remove it and shifts power to persons who can make better use of search/indexing tools or have the means to hire someone who does.