Into Oblivion

In late June, the editors of Le Soir, a Belgian daily newspaper, received a court order to erase someone from an article in their online archive. The ruling, issued by the European Court of Human Rights (ECHR), was oddly specific: Le Soir had to delete the person’s first and last names from the online version of the piece and replace them with the letter X.

“X” was a man identified in court documents as Olivier G. He is a doctor who, on November 6, 1994, was driving drunk and caused an accident that killed two people and injured three; he was convicted of multiple charges. In its coverage of the crash, Le Soir printed his full name, which was available in public police and court records. In 2006, Olivier G. received a “rehabilitation decision” from a Belgian court, meaning that the crime had been cleared from his record. He thought he had put the matter behind him until 2008, when Le Soir digitized its print archive, and suddenly the article reporting his conviction was online for all to see. Olivier G. sued the publisher of Le Soir for violating his right to privacy and his “right to be forgotten”; he requested that his name be replaced with the letter X. One Belgian court ruled in his favor, and then another; Le Soir appealed the case all the way up to the ECHR, arguing that anonymizing the article would violate the paper’s right to freedom of expression. The ECHR disagreed: the paper’s online archive, it argued, acted as a “virtual criminal record,” preserving details about a crime that the courts had long ago expunged.

In Chapel Hill, North Carolina, a researcher named Deborah Dwyer read the news of the Le Soir verdict and couldn’t believe her eyes. The ruling seemed to go further than previous European court decisions in that, rather than ordering Google to remove an article from search results, the ECHR judges demanded that a publisher permanently alter an original source. On her website, UnpublishingtheNews.com, Dwyer, a forty-nine-year-old former journalist and newsroom executive from Chattanooga, Tennessee, keeps track of how newspapers around the world are approaching the difficult subject of what, when, and how to remove material from their websites. After reading through the Le Soir case, she wrote a blog post issuing a warning to US newspaper editors: “In America I hear lots of people scoff and say, ‘The First Amendment will never let that happen here.’ After five years of researching this topic, I have to say I’m not quite as optimistic that the American media are as protected as they may think.” She added: “If nothing else, we need to stay on top of the facts and consider how both the EU’s existing law might be more broadly interpreted—and how a U.S. version might unfold. It can’t hurt to be ready.”

Dwyer, who is now a PhD candidate at UNC–Chapel Hill, has spent the better part of the past decade researching the uncomfortable relationship between editors and erasure. She began looking into what she calls “unpublishing” practices around 2016, while working at the Chattanooga Times Free Press as the director of marketing; editors occasionally received requests from people who wanted their names or images removed from a story, and the paper did not have a standardized policy for how to decide which requests to honor. Dwyer realized that how the Free Press handled these questions would make or break its relationship with the public. Later, as part of her doctoral research, she went back to the editors and asked what exactly they meant when they said they “took down” a piece of information. “Does that include the pdf of the print page that is housed on your website that is key-word searchable? If not, then you haven’t taken it off your website. It’s still on every single one of your third-party apps; it’s still on LexisNexis,” she told me. The editors could not promise to “take down” content if they did not remove it from their entire archive. “Otherwise, it’s not just an overpromise, it’s a lie.”

Dwyer wanted to help the Times Free Press come up with a more transparent approach. So she started looking into how other papers were responding to these questions. She did not like what she saw. Every news outlet in America seemed to have its own bespoke, often improvised way of handling take-down requests; some quietly deleted names or even entire articles from their websites, going much further than even their European peers; others refused to consider requests at all. “The big concern here is that, basically, news organizations are now willingly performing much more extreme acts of censorship of their own content than what is being done in the EU under legal mandate,” she said. “For some reason, most of them don’t acknowledge that.” She found that there was little consensus on when and whether it was ethical to modify or remove names and identifying images from articles; the editors she spoke to seemed to be split between a desire to figure out an equitable means of addressing these requests and a sense of horror that they were even being considered.

At the same time, newsrooms were increasingly interested in addressing the fact that the digitization of their online archives, and in some cases their classified ads, meant that all kinds of minor crimes, arrests, and misdemeanors—even bad blind dates—were now turning up in people’s search results. In July 2018, Chris Quinn, the editor of Cleveland.com and the Plain Dealer, announced a “right-to-be-forgotten experiment,” allowing people to request the removal of reports of past minor crimes. In January 2021, the Boston Globe announced a “Fresh Start initiative” that would do the same; the Bangor Daily News (BDN), in Maine, launched its own unpublishing program. “Starting today, the Bangor Daily News will be taking requests to remove old crime stories from Google, which is responsible for 97 percent of our search traffic,” Dan MacLeod, the managing editor, wrote to readers. “Wherever possible, we will remove the original social media posts promoting the stories. In other words, the average person doing a Google search will not find out you were arrested for marijuana possession at a gravel pit party in 2004.”

Other outlets took notice. Dwyer invited editors to ask questions about how to approach take-downs in a forum on her blog. Paul Jeffko, the president of a site called SmallTownPapers.com, which digitizes print newspaper archives, posted about how he struggled to verify requests to redact the scans on his website. Drew Broach, of the New Orleans Advocate, asked what material editors should ask requesters to submit. “It seems so huge that newsrooms don’t know where to start, and they have no bandwidth,” Joy Mayer, the director of a nonprofit called Trusting News, told me. “This is a place where the industry just desperately needs guidance.”

Dwyer’s forum provided a place for editors to start having a public conversation about their practices. “If we want to maintain that there is this entity that we call journalism as a profession, then we do have to arrive at a basic understanding of whether altering our archives is okay or not,” she told me. She did not think it would be impossible for editors across the country to come together and decide: Is unpublishing “anathema to the profession, or is it a twenty-first-century professional practice that we have to have?”

 

Technically speaking, the “right to be forgotten” does not exist. In EU law, it is encoded as a Right to Erasure, affording individuals the prerogative to request that publishers delete or de-index their data from the internet, provided that the information is no longer relevant or in the public interest. As Jeffrey Rosen, a law professor at George Washington University, has observed, this modern right derives from the French “‘le droit à l’oubli’—or the ‘right of oblivion’—a right that allows a convicted criminal who has served his time and been rehabilitated to object to the publication of the facts of his conviction and incarceration.” Olivier G. fits that description almost exactly. He did not petition the court for the right to be forgotten, but rather for the right to be erased, obliterated, removed from the public record—or at least from the “virtual criminal record” of Le Soir’s online archive. The original account of his arrest and conviction would be preserved in the newspaper’s print archive; anyone who wanted to read it would have to sort through stacks of newsprint.

As Dwyer warned her readers, discussions of the “right to be forgotten” often note that a similar provision could never take hold in the United States. But in fact, there are good reasons to suspect it already has. “Oblivion” is one of the oldest known legal mechanisms for redressing both public and private disputes and allowing past transgressions to be forgotten. In ancient Athens, the Greeks marked the end of the rule of the Thirty Tyrants by making an offering before the altar of oblivion, on the Acropolis, and swearing a collective oath never to remember all the acrimony the period had wrought. They physically destroyed records of the war, chiseling out, whitewashing, and smashing engraved stone tablets. In early modern Europe, a provision known as the “oblivion clause” was a standard entry in peace treaties, promising that “words, writings, outrageous actions, violences, hostilities, damages, and expenses…shall be bury’d in eternal Oblivion.” That allowed warring parties to reconcile, sanctioned the forgiveness and burning of war debts, and provided both individuals and nations a path to move on from a period of conflict.

In colonial America, state legislatures often invoked “Acts of Oblivion” to settle religious and political disputes, to quell civil unrest and rebellion (notably between royalists and revolutionaries), and to mark the start of a new government. Bernadette Meyler, a legal scholar at Stanford, notes in a working paper that in 1683, after William Penn was installed as the colonial governor of Pennsylvania, “an Act of Oblivion was read thrice and confirmed” in the legislature. And in 1782, the Continental Congress instructed New York and New Hampshire to pass acts of oblivion regarding delineation disputes they had with Vermont. Sanctioned acts of erasure and forgetting are as old as the American experiment itself.

In the nineteenth century, oblivion faded from view as a legal concept; the right to privacy came to the fore. Amy Gajda, a former journalist who now teaches privacy law at Tulane University, argues that in some of the earliest privacy cases, a version of an American right to be forgotten can be detected. “In 1803, the Pennsylvania Supreme Court found a newspaper liable for publishing information that suggested a clergyman had had a past dalliance with a parishioner,” Gajda writes in a law review article on the subject. That the information was accurate didn’t matter; the court decided that the clergyman’s affair was “improper for public examination.” Courts in Texas, Massachusetts, and Louisiana made similar rulings over the course of the next hundred years. (The Louisiana decision, from 1884, was richly phrased: “Indeed, that would be a barbarous doctrine which would grant to the evil-disposed the liberty of ransacking the lives of others to drag forth and expose follies, faults or crimes long since forgotten, and perhaps expiated by years of remorse and sincere reform, with no other motive than to gratify hatred or ill-will by blasting the character and reputation of their victims.”) As she read through these rulings from over a century ago and tracked their modern successors, Gajda concluded that the right to be forgotten “has no need to cross the Atlantic; in some ways, it has been on US shores for centuries.”

“Courts don’t use the phrase ‘the right to be forgotten,’ but you have language that very much parallels a right to be forgotten in a number of cases,” Gajda told me. She begins her law school classes by showing students an excerpt from the Second Restatement of Torts, a document published by the American Law Institute; the most recent and relevant provision on privacy, from the 1977 edition, uses an example from Les Misérables to argue that there is, indeed, an American right to be forgotten. “The Restatement from 1977 suggests that Jean Valjean could have a successful invasion of privacy action against Javert for revealing his old criminal history, because the revelation of the criminal history ruins Jean Valjean’s life,” Gajda said. The Restatement also notes that “every individual has some phases of his life…and some facts about himself that he does not expose to the public eye,” perhaps including “some of his past history that he would rather forget.” It is an American right to be forgotten in effect, if not in name.

Recently, courts and legislatures across the country have taken up that premise. In 2015, a judge in Pennsylvania ordered that two websites remove mentions of a man’s criminal record and his participation in the Witness Protection Program. A few months later, a federal court in Washington, DC, issued a similar ruling in a different case. The New Hampshire legislature has, in the past couple of years, voted on two bills related to the right to be forgotten, one of which would have required media organizations to publish follow-up reports on “the outcome of a case and controversy” and, under certain conditions, to “take down any unflattering pictures or mugshots of the accused.” Both bills failed. In March, Heidi Sampson, a Republican, introduced similar legislation in Maine’s statehouse called the “Stop Guilt by Accusation Act.” According to the Lewiston Sun Journal, the bill appeared to be tied to a right-wing organization that had already tried to introduce the same legislation in several states—including Alabama, Kansas, Mississippi, and Rhode Island. The Maine Press Association vowed to fight its passage, calling the bill unconstitutional. “Accountability for ethical and responsible journalism must come from dialogue between journalists and the communities they cover,” Meagan Sway, the policy director for the ACLU of Maine, told the Bangor Daily News. The same article made note that the BDN was inviting people tormented by stories on their years-old misdemeanors and felonies to petition its newsroom directly.

 

“We need, in our business, to constantly be assessing everything we’ve always done,” Quinn, the editor of Cleveland.com and the Plain Dealer, told me. Before starting the right-to-be-forgotten experiment, he found himself declining so many take-down requests that he realized there might be something wrong with his approach. “I just couldn’t take it anymore—we were harming people by standing on tradition.” These days, his staff receives a “steady diet” of requests, he said; they act on the vast majority of them. “When it appeared in print, it would go to the microfilm and no one would ever see it again,” he explained. “But now, because we have very powerful SEO, we’re the first thing that people see. We’re trying to restore the order that existed before the internet.” Last December, Quinn’s newsroom received a $200,000 grant from Google to develop technology that could scrape through its archive and identify mug shots or minor crime reports that should be preemptively de-indexed or removed. He hopes that the software, which is still in development, will help alleviate the structural inequities of a system in which people have to know about the paper’s right-to-be-forgotten program in order to benefit from it.

MacLeod told me that he has been running the BDN program largely on his own, but that he consults with his colleagues on complicated cases and asks reporters to research some of the requests. As we spoke, he pulled up a spreadsheet and walked me through a few examples: a family member asking to remove a paid obituary (approved); an alleged road rage incident in which an arrest occurred and charges were dropped (approved after a reporter confirmed the details with the district attorney’s office); a pending request from a former town official to have an embarrassing story about him taken down (MacLeod said he would probably deny that one). “Mostly it’s these court or crime stories from several years ago,” he said, “where there was an arrest and it does not appear that we followed up on it.”

Deleting old stories has forced newsrooms to reevaluate how they handle unfolding crime coverage. Names are no longer included in Cleveland.com articles on police blotter reports; neither are mug shots. MacLeod said his paper no longer publishes lists of indictments and has minimized its rote reporting on crime. All over the country, journalists are questioning the degree of trust they ought to place on police sources—particularly since the murder of George Floyd, when the Minneapolis Police Department released a statement that obscured his cause of death, claiming that he had “physically resisted officers” and “appeared to be suffering medical distress.” The statement made no mention of what was plainly captured in video footage: officer Derek Chauvin pressing his knee into Floyd’s neck while Floyd said he couldn’t breathe. Last summer, racial-justice protesters condemned the practice of citing police statements without corroboration, which American newsrooms had been doing for years.

In January, when the Globe debuted the “Fresh Start initiative,” it was framed as a response to Floyd’s murder and the media industry’s complicity in racial inequities. “The country, and our industry, had a national reckoning on race last summer, and this is one of the things that came to the forefront,” Jason Tuohey, the managing editor for digital at the Globe, told me. “It felt like this was something we’d been talking about for a while, we’d been dealing with these requests and cases for a while, and now is the time to come forward…to put something in place that feels bigger and more permanent.” Before the team got started, members participated in a program on unconscious bias, run by a consulting company called ReadySet. They also met with community organizations, including groups dedicated to mitigating recidivism and supporting survivors of sexual violence.

“The first batch was simple stuff,” Gregory Lee, a senior assistant managing editor who sits on the Fresh Start committee, told me. The cases tended to be “clear cut,” he said; they didn’t require extensive research. But as the months went on, the requests became more complicated, the committee debates more protracted. “For some time, we’re going to be in precedent-setting mode,” Lee continued. “In every pile, we get something that we’ve never seen before.” As of September, Tuohey said, the review committee had seen about seventy-five Fresh Start requests and had taken action—often de-indexing or anonymizing a story—in about half of the cases. Recently, they approved a petition from a man who was alleged to have kicked the door of an ATM when he was young, about ten years ago. The charges against him were dropped, but the Globe had published his name as part of a police brief. The man was now an advocate for the local Latinx community and wanted the article removed from his search results. “It’s a perfect example of such a minor incident,” Tuohey told me. “Why would a newspaper even cover it, looking back?” On the flip side, the committee had declined a request from a “big-time developer” asking to have a negative story about them de-indexed. “We said, ‘No, that doesn’t meet our standard.’”

The Globe committee operates according to a set of external guidelines, which are visible on its website (they will run a background check on all applicants; the older the case, the more likely it will be considered), and a more robust set of internal guidelines, which are not. “We don’t broadcast, because we don’t want someone trying to game the system,” Tuohey told me. “We’re fairly early on in this process, and as we continue to get more experience, I do think we’re going to be flexible in terms of tweaking our approach.” He’s keeping internal records of the decision-making. “At some point, it’s possible we may broadcast general information,” Tuohey added. “But I don’t think we’re there yet.” This posture means that, for now, when the Globe says it is making every effort to ensure a fair and equitable process, the public mostly has to take the editors’ word for it.

That may not satisfy everyone. “What I hear too often is that newsrooms, in the absence of an official policy, just address each situation as it comes,” Joy Mayer told me. “And while I know that they are usually operating in good faith, that’s an awful answer, because it’s inconsistent—it depends on which editors are involved.” She continued: “Journalists can be really complicit in a systemically oppressive system if their bias about who deserves a break and who needs to be held accountable is the final word.”

Pauline Quirion—a lead attorney at Greater Boston Legal Services who directs the organization’s reentry project for recently incarcerated people—told me that Fresh Start is “a wonderful thing.” But when she learned of the program, something troubled her. “My stomach kind of dropped when I saw that they were going to be looking at the CORI reports”—that is, court arraignment records, called CORIs, for Criminal Offender Record Information. CORIs may contain information about prior offenses irrelevant to petitioners’ requests; by consulting them as part of its deliberation process, Quirion fears, the Fresh Start committee could be at risk of perpetuating the very discrimination it is seeking to remedy.

Leslie Credle, a formerly incarcerated person who now runs a Boston organization called Justice 4 Housing, which helps combat housing discrimination, told me that she had not heard of the Fresh Start program, though it “definitely can make an impact.” A few weeks ago, a client of hers nearly lost an apartment: a prospective landlord Googled the person’s name and found a newspaper write-up of a past criminal offense. The client had been arrested and convicted, but her CORI report was clean; the newspaper article was the only remaining record of the infraction. Newspaper articles can do “a lot more damage than getting arrested, sometimes—it’s a domino effect: your landlord finds out, your neighbor finds out,” Credle said. “It shapes a narrative.” Context for minor crimes is often left out. “A young Black individual might feel like they need to protect themselves. They’re not carrying guns because they’re in gangs, or because they want to use them. It’s because they’re afraid of where they live.”

 

Newspaper editors are not interested in doling out forgiveness. They are not in the business of delivering absolution, clemency, or mercy to the public. That job, they told me, is for the courts. Yet the introduction of unpublishing programs means that forgiveness, and what it means to be “rehabilitated” in the eyes of the community, is effectively what newsroom committees are considering: Which crimes should we always remember, and which crimes should we forget? How long is long enough for a crime to stop being newsworthy? Who deserves a clean slate? “For many people, it’s a ‘there but for the grace of God go I’ kind of thing,” MacLeod said. “Everybody makes mistakes, everyone’s story is different, everyone’s got their own problems, their own demons that drive their decisions.”

These committees are operating in parallel to the legal system, at once anticipating and responding to court rulings. If a court pardons, seals, or expunges a criminal offense, the Globe, Cleveland.com, and BDN are likely to de-index or anonymize their reports of the incident. But that is not the case everywhere: Kathy English, a former public editor of the Toronto Star who, in 2009, conducted the first survey of journalist attitudes toward unpublishing, told me that she has often encountered cases in which the courts already effectively pardoned a crime but newspapers insist on maintaining their records of it. That has been particularly true when it comes to minor criminal offenses involving marijuana, which Canada began pardoning in 2019. “You’re telling me that you can get a pardon from the government for this charge, but you can’t get a pardon from a news organization?” English observed. “That hard wall of ‘We do not unpublish, it’s not our job to rewrite history, we don’t un-ring the bell’—it’s hard to get editors to move beyond that, to see a need for clemency, for mercy, for compassion.”

That challenge is further complicated by the attitudes of news consumers. In 2019, the Pew Research Center found that 74 percent of American adults believed it was more important to have the ability to keep potentially damaging personal information off the internet than to be able to easily find “potentially useful information about others.” But last year, Dwyer conducted her own survey—asking 1,350 adults in the US how their views of a news organization’s credibility might change if they were to learn that it had removed information from its archives—and her results were different. Nearly 29 percent of respondents said they would feel “positive” about it, 33 percent said they would feel negative, and 37 percent were neutral. When asked if it would alter the publication’s trustworthiness, 31 percent said they would feel positive about their level of trust; 35 percent said they would feel negative. Two-thirds of respondents said that news organizations should prioritize the public’s right to know over efforts to minimize individual harm caused by their reporting. One result diverged radically from the Pew study: most of Dwyer’s respondents sought the ability to request that a publication take down their own information but wanted to be able to read about others.

“I consistently see that in some respects, the audiences want more control over their own stuff, but they still want to know about their neighbors,” she said. Her conclusion: “We expect technology to carry a lot of our water, as a society. I would propose that we give long and hard thought to what it’s going to take for us as a society to begin to understand that we have accepted our digital presences as a part of our life. We benefit from all of these affordances. I don’t know that we can have twentieth-century privacy expectations today.” (About a year ago, when I interviewed privacy engineers about what it means to “delete” data from a phone or a database, they told me that every tech company is working on it but that no one has it cracked. Companies have different understandings of what it means to “delete” something. The tech and journalism industries are both attempting to approach this problem, separately.)

Some newsrooms are understandably concerned that something like the right to be forgotten will soon be officially recognized in the US; having robust procedures in place ahead of time might obviate the need for formal legislation, allowing newsrooms to retain control over their digital presence. Whether editors are reevaluating old reports by choice or by court order, however, the same moral considerations apply. Jasmine McNealy, an associate professor in the department of telecommunication at the University of Florida, told me that one of the most important ways newsrooms can redress harms caused by their coverage is simply by following a story all the way to the end. “There’s a power imbalance on the side of the publishers,” she told me. “People need to be able to exist and evolve—people are not jerks all of their lives. What happens when the story changes?”

What that means, of course, is not the same for everyone. Programs like Fresh Start will succeed if they end up helping people from marginalized backgrounds who have committed minor crimes in the past and want to move on with their lives, get jobs, escape the long shadow of the criminal justice system. But those programs will fail if they are even suspected of being avenues for the rich and powerful to selectively edit their pasts. Handling unpublishing requests is, for editors, a high-wire act. They must strike a balance between evaluating every case on its merits and applying the same standards to each one. While doing so, they must engage in an ongoing conversation with their newsrooms about what to cover in the present.

“When do you report on a crime?” Dwyer asked me. “Do you commit to seeing through adjudication?” If a case ends in dismissal or acquittal, is the crime desk committed to updating the story? If it doesn’t, will the state’s legislature one day compel it to do so? Gajda answered these questions from a legal standpoint: “Law, many times, will reflect current customs,” she said. “If in fact there is this push toward unpublishing in newsrooms, that can ultimately have an effect on law. If we as lawyers and judges and scholars suggest that privacy is relative to custom, what’s happening today in newsrooms is highly relevant to the way the law could be going.”

Linda Kinstler is a writer based in Washington, DC. Her work appears in The Atlantic, the New York Times, The Economist, and elsewhere. She is the author of Come to This Court and Cry.