The test case for the E.C.J.’s landmark ruling came from Spain, where the right is known as the
derecho al olvido.
(Hundreds of other cases like it are percolating in the country’s
courts.) Several years ago, a lawyer named Mario Costeja typed his name
into Google and turned up an article about himself that was published in
the late nineteen-nineties in a Catalan newspaper. At the time, Costeja
had fallen into debt and needed to sell some of his property. The
newspaper wound up publishing the details, which eventually appeared in
its online archives. Those archives were searchable through Google. In
2009, Costeja complained to a government body called the Spanish Data
Protection Agency, which ordered Google—but not the paper—to remove the
links. (The debt “was resolved and paid years ago, and I’ve since been
divorced, but according to Google I’m still in debt and married,”
Costeja said.) Google appealed, and eventually the case rose to the
Spanish high court, which sought direction from the E.C.J. That
direction came last week.
The phrase
derecho al olvido carries an odd resonance in
Spain. The country lived under the harsh rule of a dictator, Francisco
Franco, for nearly forty years. Franco had come to power after a bloody
and protracted Civil War in which he and his forces killed a massive
number of their countrymen—by some estimates, about two hundred thousand
during the war, some twenty thousand in its immediate aftermath, and
thousands more who died either in prisons in Spain or in concentration
camps across the continent. When Franco himself died, in 1975, the
country underwent a turbulent, but largely civil and pacific, transition
to democracy. These years were full of promise, but the bloodshed and
repression that preceded them never truly went away. The old guard did
not step aside, really; it just rebranded itself for a new era.
Francoists became cultural conservatives—retrograde, maybe, but mindful
of their place in a new European order. A new ethos took root: Spaniards
were encouraged to look ahead and not to the past, for the greater
benefit of the public. (The legal system was tasked with overseeing this
move forward. An amnesty law was passed in 1977 that halted the
prosecution of Franco-era crimes.) The unspoken agreement to leave the
past behind became known as the
pacto de olvido, an agreement to forget.
This past Sunday, I spoke to Emilio Silva, the president of the
Spanish Association for the Recovery of Historical Memory, a group of
advocates that pressures the government and the public to confront the
crimes of the past. Among other things, the group tries to persuade
Spanish courts to take up allegations of past atrocities that have gone
ignored. “The ruling on Google gave me pause,” he said. “Sure, it sounds
great that we all have the chance to cleanse our image, but what are
the limits?” Spain, he reminded me, is a
fábrica de olvidos, a factory of forgetting.
Since the early aughts, groups led by Silva and others have exhumed
more than a hundred mass graves nationwide, where thousands of bodies of
the Civil War dead are still buried. Most of them belong to leftists or
Republican sympathizers. When Franco’s forces won, the dictator forced
survivors on the losing side to erect a massive crypt to honor those who
died on the winning side. Everyone else was consigned to
state-sanctioned oblivion.
According to Soledad Fox, the chair of the Romance-languages
department at Williams College and an expert on twentieth-century Spain,
the entire concept of memory in the country is fraught with tension.
“Those who were in a position to ‘remember’ were, in a sense, inclined
to forget certain things,” she said. By noting this, she was challenging
an idea that has emerged in some sectors in Spain: that only those who
lived through the Civil War had a right to comment on the past. Fox
suggested otherwise: the partisans who did battle in Spain before and
during the Franco years often had a bias toward their own side; they
have remembered what they wanted—a case of selective memory. A
historical-memory law, passed in 2007 by the Socialists, officially
condemned the Franco regime and made it easier to dig up mass graves.
But it quickly became mired in controversy, and it has lost much of its
force since conservatives retook office in 2011.
That same year, the Royal Academy of History, an organization
supported by public money, omitted the word “dictator” in its official
encyclopedia entry on Franco. Other entries were riddled with
euphemisms, elisions, and even outright inaccuracies. A nationalist
priest killed by Republicans was called a “martyr,” while Republican
casualties received no such grace notes. Republican troops are called
“the enemy” at another point, and pillaging by Franco’s forces in the
cities that they initially invaded are glossed over as “normalizing
civilian life.”
One word for all this, according to left-leaning critics at the time,
was revisionism. (Silva put it more poetically to me: “History books
are full of forgetting.”) Even more troubling has been the position of
the courts. Despite international attention, the Spanish courts have
largely refused to recognize the atrocities committed during and after
the Civil War as “crimes against humanity,” even though the historical
record suggests that Franco’s forces were bent on
systematic
extermination of ideological rivals. The Spanish court involved in the
Google ruling is “the same court that has also tossed out complaints
aimed at redressing the country’s own past,” Silva said.
Last month, the National Court denied an extradition request for
Antonio Gonzàlez Pacheco,
a notorious former police inspector during the Franco years known as
Billy the Kid. Lawyers sought to have him tried in Argentina under
universal jurisdiction. Silva pointed out a bitter irony: this court was
willing to tout, and to institutionalize, a right to forget in a
country in which it’s become hard to remember.
It’s still too early to say what effect the ruling on Google will
have on the historical-memory movement. No alleged criminals, or their
families, have requested that Google take down links about them just
yet—at least not as far as Silva knows. It’s possible, too, that courts
can say that preserving these links is in the public interest, although
Silva is not optimistic. He and fellow human-rights advocates have used
the Internet to track down criminals from the Franco era whose names
appear in court documents. He worries that a robust right to be
forgotten could throw off the pursuit. In 2008, a Spanish court fined a
group called the Association Against Torture for publishing online, a
few years earlier, a list of names of those accused of having committed
torture. (The Association eventually had to take down the entire list.)
For the past thirty-odd years, the message of the Spanish state has
been unmistakable: the decades-old amnesty law has rendered many of the
crimes of the past irrelevant to the contemporary public interest. Does
this mean that alleged victimizers now also have a right to be
forgotten? “The notion of forgetting by legal decree scares me,” Silva
said. “Any right to be forgotten has to be compatible with a right to
know the truth.”
Photograph of Francisco Franco by Bettmann/Corbis.
Bill de Blasio
NYC mayors over the last 100 years
he
novelist Philip Roth announced today that a sandwich he ate last week, a
turkey one with lettuce and tomato on wheat, would be his last.
ood
morning. I’m writing from the Rose M. Singer Correctional Facility,
dorm 2 East B on Rikers Island – where I’ve been held for the past 4
days.
