In 2011, Tyler*, in his late twenties, met up with a woman at a downtown bar and, after a few drinks, they went back to his apartment. Toronto Police later opened an investigation into Tyler and charged him with sexual assault. He appeared in court for the first time on December 31, 2011. These facts, a matter of public record, were reported in the Toronto Star and The Varsity. Ten months later, the charges were withdrawn, but this development was never reported on, and there is no more readily-available public information on Tyler’s case.
Open and shut, without much closure. But that, really, is only the beginning of this story.
I don’t think there was any failure on the behalf of the media to continue following Tyler’s case. A late follow-up to an otherwise relatively insignificant and anonymous crime story isn’t exactly at the heart of public interest. The Varsity never reported on Tyler in isolation but as part of a larger story on sexual assault on and around campus, and the Toronto Star’s coverage consisted of a terse breaking news piece that would have gone online and immediately been forgotten among dozens of similar articles. Tyler neither is nor was particularly important; no journalist would have had any cause to go searching through court files to prove or disprove any wrongdoing. He was never convicted of sexual assault, or any other crime that I’m aware of, but the lack of information clarifying this is ominous.
And he claims that it ruined his life.
Over the past few months, Tyler, now into his thirties, a concerned ex-fiancée, and his current partner have been in touch with me. They want me to help them erase all evidence of Tyler’s sexual assault charge from the internet, and I don’t know to what extent I’m willing to help them do it. At the very least, I have tried answering some very meaningful questions about The Varsity’s role as a newspaper of record and source of archival information.
Tyler wants us to de-list his name from the web page that holds a digital copy of the newspaper from 2012 in which his charge of sexual assault is referenced. If you search Tyler’s name on Google, this web page comes up around the fourth page of results. De-listing entails removing a web page from a search engine index, or isolating and removing certain search terms on that web page from an index. In this case, Tyler’s name itself is on the web page, and that’s the search term.
While I’m not sure I buy into the fact that this blemish on Tyler’s searchable history is the root of all of his problems, he makes an impassioned case for it. He claims that he’s struggled to find work because search results make it appear that he’s a sexual criminal. He also says that a severe medical condition he has since been diagnosed with was brought on in part from the stress that this ordeal has put on him.
Tyler was successful in having the Toronto Star de-list his name from its website: the article on his charge of sexual assault doesn’t come up in a Google search, though it can be found through the Star’s internal search engine. An editor’s note dated 2015 also clarifies that the charges against him were dropped. However, the story on Tyler doesn’t appear to have ever run in print in the Star, so it is unlikely to face the same dilemma that The Varsity currently finds itself in.
The Varsity also acquiesced to a request from Tyler in 2015. When one of my predecessors removed the reference to Tyler’s case from the original article on thevarsity.ca, it was accompanied by an editor’s note detailing why the change was made. I think this is consistent with our Code of Journalistic Ethics, which stipulates our editorial operations and makes specific note of when and how we’re supposed to remove content from our website — in this case, when it can be shown that the content is no longer accurate.
But our archives are a completely different beast than the living, breathing thevarsity.ca. It appears impossible on our end to de-list just Tyler’s name from the digitally-hosted print archive without also de-listing all other terms from that same issue hosted online. It’s the search engines themselves, and not our digital archives, that find Tyler’s name in those old PDFs and bring them to the fourth page of Google.
De-listing the entire issue would effectively make all the other content in that issue of The Varsity nearly impossible to find via a search engine. While we usually balance the content of a single article against the harm it may pose to a person or the public interest, in this case we’re balancing the content of an entire print issue of a newspaper. As for tampering with the existing archival files, I simply won’t do that — the whole point of an archive, after all, is preservation.
Tyler’s argument with us lies at the crux of a legal question unique to the internet age, and one that he often defers to alongside his plea for compassion: the ‘right to be forgotten.’ This right is, in essence, the ability of individuals to live their lives without being stigmatized as a result of past actions. The relative permanence of the internet and ease with which people’s histories can be called up has made this proposed right more salient in the last two decades.
The right to be forgotten has existed in the European Union since 2012 and has been successfully upheld in court cases across the continent. Google has removed millions of links from its indices in Europe. This right has also been invoked in Argentina, since 2006, though the law is more specific to images than text. In all of these cases however, the responsibility falls on individuals to petition search engines themselves, not the original outlet of publication, to de-list the results in question. My gut tells me that Tyler’s tried this but to no avail, because there’s no basis for search engines to comply with an inconsistent ethical standard unenforceable by Canadian law. They don’t give a shit about Tyler, but we’re supposed to.
The right to be forgotten is gaining some traction in Canada. In September 2018, Privacy Commissioner Daniel Therrien asked the Federal Court to make a decision on the matter. This hasn’t stirred up much fervour so far, though the group Canadian Journalists for Free Expression calls the right to be forgotten “large-scale private censorship,” and it isn’t alone in identifying the tension between a right to be forgotten and freedom of expression.
An email from Tyler’s partner that I received in January includes the following: “We collectively appeal to your goodwill and conscience to make a one time exception to your mandate, and provide us necessary relief to sustain a normal life.” Is clarifying Tyler’s lack of criminal guilt more valuable than the accessibility of The Varsity’s archives, or is this about something bigger?
Even if it’s true that we have a right to be forgotten, to what end, and at what cost to access to information? If an individual has a right to be forgotten, does information likewise have a right to be remembered?
I’m not really sure, and I don’t think you should be either.