You must remember this: on matters of public record, we mustn’t forgive and forget

FOR many years the Australian media has been fighting against censorship. Now a new battle looms — the right to be forgotten.

FOR many years the Australian media has been fighting against secrecy and censorship through its Right to Know campaign. Now a new battleground looms — the right to be forgotten.

European courts have virtually invented a new “right” for individuals with a judgment in May that a Spanish man has the right to expunge from his record details of a 16-year-old dispute over a debt.

He argued the matter had been resolved, was ancient history, had no relevance today and was impeding him in current financial dealings. It was, by any assessment, a trivial matter — but it has vitally important implications.

The effect of the judgment is to give individuals in European Union countries the right to force Google and other search engines to remove online material about them they say is “inadequate, irrelevant or excessive”.

This, in itself, raises eyebrows. Are we now seeing European lawmakers outsourcing enforcement duties to internet search giants? Certainly, Google is uncomfortable with the European demands and unsure how they are to be implemented. It currently has a panel of experts on a “listening tour” of European capitals, trying to put flesh on the bones of the court ­decision by defining the methods to be used and the limits of the law. Critics say the tour is merely a public relations effort to try to make the issue go away.

But the issues go beyond who should enforce the law and how it is to be implemented. It has to be seen as a further limitation on information and, as such, an attack on the freedom of the press and the free flow of information.

Australia will inevitably be caught up in the debate which is ­already engaging the top legal minds of the US. While our privacy laws are not as strict as those in the EU, there is already support for the “right to be forgotten” concept.

In the 2012 Alfred Deakin lecture, Communications Minister Malcolm Turnbull said: “Surely as we reflect on the consequences of the digital shift from a default of forgetting to one of perpetual memory we should be seeking to restore as far as possible the individual’s right not simply to their privacy but to having the right to delete that which they have ­created in the same way as can be done in the analog world.”

Turnbull was in opposition when he said that and his meaning is unclear. He needs to refine his words. Does “the right to delete that which they have created” refer simply to an angry email, or perhaps an ill-advised naked ­selfie? Or does this view extend to matters on the public record?

As always, this is a matter of ­defining where you drawn the line — which seems to be the point of the Google “listening tour”. ­Google says it will comply with the law, but needs more information — another unsettling aspect to this issue. Since when have the scope of laws been decided by ­global business monoliths, rather than parliaments?

The concept of manipulating records to suit the privacy needs of individuals also sits oddly with governments demanding internet service providers keep data records of all online activity for two years. Which of these competing forces will prevail?

All of us have done things in our past we are not proud of. We would prefer not to have them regur­gitated, especially in the media.

In his lecture, Turnbull refers to the analog world — that is, the old world from which we have come. Yes, we could tear up a nasty letter sent in haste (if we could get it back) and yes, we could burn an incriminating photograph to keep it from prying eyes. But it is much more difficult in the internet age where, as we have seen recently, all manner of indiscretions float about in the clouds, waiting for hackers or mischief-makers.

I have sympathy with the ­Spanish guy with his inconsequential debt records and I have ­sympathy with those who might have an embarrassing picture, taken in private for private pur­poses, being exposed. But who ­defines matters of inadequacy, ­irrelevance or excess? If it is the ­individual, get ready for a wholesale rewriting of history. If it is Google or governments, get ready for years of litigation.

When it comes to matters of public record, there should be clear rules and a total exemption. If it happened, if it is true and if it is on the public record, then it should ­remain on the public record and be available for public access.

This is precisely the way it worked in the analog age. It should not be different in the ­digital age.

All that has changed is the method and ease of access. In my early days of journalistic sleuthing, we had to devote seemingly endless hours to searching records. If we were seeking information about someone accused of being a conman, we would ask a friendly copper to have a look at his or her record and give us a tip about past entries. Then we would look up the newspaper court reports, or sometimes the court records, and take it from there.

Now all it needs is a touch of a button and a thank you to Google. But in today’s mainstream media, once the information is discovered it leads to another set of questions about whether or not it should be published. Is a minor debt dispute 16 years ago, now settled, worthy of mention?

Probably not, unless it were the first in a long line of ­similar events.

Is it permissible to remind readers that public figures like Alan Bond, Geoffrey Edelsten or Harry M. Miller each spent time behind bars? Or that I was once a director a company that went into receivership?

Absolutely. There can be no ­censorship of public records in a free society.

There are also good reasons why, say, a serious sex offence committed decades ago should not be expunged and forgotten, even if the perpetrator did his time. Community demand has led to the establishment of serious sex-­offender files and it is unlikely there would be support for those individuals to be able to consign their actions to the forgettery.

The media may be imperfect, but it remains a vital public watchdog and as such, it should not be hobbled by more laws and ­restrictions.

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