The test case for the E.C.J.â€™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 countryâ€™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 Googleâ€”but not the paperâ€”to remove the links. (The debt â€œwas resolved and paid years ago, and Iâ€™ve since been divorced, but according to Google Iâ€™m still in debt and married,â€ 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 countrymenâ€”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 conservativesâ€”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. â€œThe ruling on Google gave me pause,â€ he said. â€œSure, it sounds great that we all have the chance to cleanse our image, but what are the limits?â€ Spain, he reminded me, is a fÃ¡brica de olvido, 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 Francoâ€™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. â€œThose who were in a position to â€˜rememberâ€™ were, in a sense, inclined to forget certain things,â€ 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 wantedâ€”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 â€œdictatorâ€ 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 â€œmartyr,â€ while Republican casualties received no such grace notes. Republican troops are called â€œthe enemyâ€ at another point, and pillaging by Francoâ€™s forces in the cities that they initially invaded are glossed over as â€œnormalizing civilian life.â€
One word for all this, according to left-leaning critics at the time, was revisionism. (Silva put it more poetically to me: â€œHistory books are full of forgetting.â€) 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 â€œcrimes against humanity,â€ even though the historical record suggests that Francoâ€™s forces were bent on systematic extermination of ideological rivals. The Spanish court involved in the Google ruling is â€œthe same court that has also tossed out complaints aimed at redressing the countryâ€™s own past,â€ Silva said.
Last month, the National Court denied an extradition request for Antonio GonzÃ lez 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 itâ€™s become hard to remember.
Itâ€™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 yetâ€”at least not as far as Silva knows. Itâ€™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? â€œThe notion of forgetting by legal decree scares me,â€ Silva said. â€œAny right to be forgotten has to be compatible with a right to know the truth.â€
Photograph of Francisco Franco by Bettmann/Corbis.
Article source: http://www.newyorker.com/online/blogs/elements/2014/05/dictator-not-found.html