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The Limits of Memory and the News: Archival Journalism, Law, Ethics, and the Right to be Forgotten

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Abstract

The right to be forgotten has been widely discussed from a legal perspective. Courts have analyzed the existence and constitutional compatibility of the right in the national legal order of several jurisdictions around the world. However, even if the right to be forgotten is not a universally recognized right, by understanding how the law approaches tensions that arise between the right to freedom of expression and the rights to seek, impart and receive information, on one hand, and a right to be forgotten, underpinned by the rights to honor, privacy and personal data protection on the other, journalists can extract ethical guidelines that can orient them in the correct use of archival information about individuals to report on current events. This work begins by explaining how legal debates can help inform ethical discussions about journalism. Then, by exploring the legal development and justifications for the right to be forgotten and identifying key elements of this emerging right, we engage in a discussion around the use of archives and memory in journalism and then identify the elements that journalists should consider in relation to the use of archival information in their profession in a way that allows them to fulfill their journalistic duties without ignoring the legal context.
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The Limits of Memory and the News: Archival
Journalism, Law, Ethics, and the Right to be
Forgotten
Los límites de la memoria y la información: periodismo, ética y
el derecho al olvido
Cetina Presuel, R. y Gutiérrez Atala, F. J.1
Recibido: 30-09-2021 – Aceptado: 25-01-2022
https://doi.org/10.26441/RC21.1-2022-A4
ABSTRACT: The right to be forgotten has been widely discussed from a legal perspective. Courts
have analyzed the existence and constitutional compatibility of the right in the national legal order of
several jurisdictions around the world. However, even if the right to be forgotten is not a universally
recognized right, by understanding how the law approaches tensions that arise between the right to
freedom of expression and the rights to seek, impart and receive information, on one hand, and a right
to be forgotten, underpinned by the rights to honor, privacy and personal data protection on the other,
journalists can extract ethical guidelines that can orient them in the correct use of archival information
about individuals to report on current events. This work begins by explaining how legal debates can
help inform ethical discussions about journalism. Then, by exploring the legal development and justi-
cations for the right to be forgotten and identifying key elements of this emerging right, we engage in
a discussion around the use of archives and memory in journalism and then identify the elements that
journalists should consider in relation to the use of archival information in their profession in a way that
allows them to fulll their journalistic duties without ignoring the legal context.
Keywords: right to be forgotten; ethics; law; journalism; media.
RESUMEN: El derecho al olvido ha sido ampliamente discutido desde una perspectiva legal. Jueces
y tribunales alrededor del mundo han dilucidado acerca de la existencia de este derecho y su encaje
constitucional en distintas jurisdicciones. Sin embargo, aún si el derecho al olvido no es un derecho
reconocido universalmente, comprender cómo resolver legalmente las tensiones que emergen respec-
to de la libertad de expresión y los derechos a buscar, recibir e impartir información, por un lado, y un
derecho al olvido que se apoya la protección del honor, la privacidad y los datos personales por el otro,
permiten al periodista extraer lineamientos éticos a los cuales recurrir para orientar el uso correcto de
información de archivo acerca de otros individuos a la hora de informar sobre hechos noticiosos en el
presente. Este trabajo empieza por explicar cómo los debates legales pueden ayudar a construir discu-
siones éticas sobre el periodismo, para luego analizar el desarrollo legal y las justicaciones detrás del
derecho al olvido y así identicar los elementos clave de dicho derecho emergente. De esta manera, es
1 Rodrigo Cetina Presuel es Doctor en Derecho de la Información por la Universidad Complutense de Madrid, In-
vestigador en la Harvard Law School, Director Ejecutivo del Real Colegio Complutense en Harvard y Co-Chair de
la Sección de Derecho y miembro del Consejo Internacional de la International Association for Media and Commu-
nication Research. Entre sus líneas de investigación se encuentran la protección de la libertad de expresión y otros
derechos fundamentales en internet, el derecho de autor y las tecnologías digitales y la regulación de plataformas
de redes sociales. rcetinapresuel@law.harvard.edu, https://orcid.org/0000-0002-1061-0166
Fernando José Gutiérrez Atala es Doctor en Ciencias de la Información por la Universidad Complutense de Ma-
drid, Periodista y Licenciado en Comunicación Social por la Universidad Católica de la Santísima Concepción, Chile,
profesor asociado y académico del Departamento de Ciencias de la Comunicación de la Facultad de Comunicación,
Historia y Ciencias Sociales de la Universidad Católica de la Santísima Concepción (UCSC, Chile) y vice chair del
Área de Derecho de IAMCR. Sus líneas de investigación apuntan a las transformaciones de la labor periodística en
el nuevo entorno, el impacto en las rutinas profesionales y los desafíos laborales, académicos, legales y éticos de
estos cambios. fgutierrez@ucsc.cl, http://orcid.org/0000-0003-2289-9224
Cetina Presuel, R. y Gutiérrez Atala, F. J.
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posible sostener una discusión útil sobre el uso de archivos y memoria en el periodismo, respetando el
sentido periodístico, pero sin desconocer el contexto legal.
Palabras clave: derecho al olvido; ética; derecho; periodismo; medios de comunicación.
1. Introduction
From the point of view of journalists, the internet, and big tech platforms, pose a serious challenge
to journalism because they have contributed to compromise the economic sustainability of news
media enterprises (Kaye & Quinn, 2010; Stremlau, Gagliardone &Price, 2018; Cetina Presuel &
Martinez Sierra, 2019) and contributed to erode the reputation and legitimacy of the press as a
democratic institution (Bennet & Livingston, 2018; Chesney & Citron 2018; Donovan 2020).
At the same time, journalists understand that the internet occupies a central position in the
development of contemporary journalism and that it is an essential tool for the profession. The
internet is understood as essential for news distribution and for reaching, connecting, and interacting
with audiences. It is also seen as a tool used to nd information that can then be reported in the
news. Journalists understand very well that as a tool, it can be used for good and leveraged to exercise
the rights to seek, receive and impart information -rights enshrined in the Universal Declaration of
Human Rights of 1948 and associated international treaties- to fulll the duty of keeping the public
informed about current issues and about people relevant to public life.
There are always two sides to a coin, and particularly within the context of social media, in a state
of transition when it comes to journalistic practice (Bossio & Bebawi, 2016), and as journalism
changes as it becomes more and more networked (Heinrich, 2011), the internet can also be used to
spread disinformation and misinformation, particularly when journalists succumb to mechanized
conceptions of communication and information distribution that give preference to eciency in
its distribution (Mattelart, 2003) instead of prioritizing careful reporting, the minimization of in-
accuracies or the adequate handling of sources. Journalism, as exercised through the internet, can
lead to a preference for immediacy and cost reduction that comes at the cost of level-headed and
reective reporting based on the rigorous collection of information, careful writing, and responsible
communication to society. For Sánchez Sánchez (2012) internet journalism runs the risk of beco-
ming desk journalism limited to literal transcription and cut and paste that forgets duties towards
sources and readers.
As it exists today, the internet functions following the logics of big tech platforms that focus on the
indiscriminate distribution of information of any kind. Social media platforms are in the business of
surveillance capitalism (Zubbo, 2019) in which information, and journalism, are merely a means to
an end, namely, keeping users engaged and using the platforms for the purpose of collecting, proces-
sing and monetizing their personal data through the creation of imperfect (Pasquale 2015) and arti-
cial (Wu & Taneja, 2021) proles that can be turned into prot by delivering supposedly personalized
advertising and purportedly tailored content that keeps users coming back to use the platforms in or-
der to feed a cycle that will lead to more substantial quarterly earnings. Within this context, platforms
perpetuate continuous control through constant communication of information in the name of prot
(Mattelart, 2003). Thus, for these companies, it is not important if the information is true or false, if
they deliver quality journalistic content, if they distinguish between news reporting, entertainment, or
advertising, or if information is currently relevant or old and no longer newsworthy.
It is in this context, in which the goal is not necessarily keeping the public as well-informed as possi-
ble (Vaidhyanathan, 2018) and where freedom of expression and communication rights are at best
secondary goals (Ghosh, 2020; Cetina Presuel, 2021) that other rights, such as privacy or personal
data protection become secondary concerns for the platforms and can also become secondary con-
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cerns for journalists themselves. In a journalistic profession that is lacking in means but abundant
in precarity -particularly in areas like Latin America (Odriozola Chené 2019; Gutiérrez Atala et al.,
2015)- the wealth of all kinds of information available online, including personal information, can
be tempting. Where before, journalists had to invest signicant time, money, and eort to search for
the news, now they can work from a desk and a computer, using the internet as their sole source,
sometimes leading the journalist to use personal information as an element in the news, or archival
information about individuals that can then be resurfaced and turned into a current news item.
Research shows that journalists nd themselves “in increasingly time-pressured, demanding wor-
king environments as their industry adapts to rising competition from the internet as a platform for
advertising as a provider of news, while newsrooms bring digital technologies into all aspects of the
news production process” (Dickinson et al., 2013, p. 4). Precarity leads journalists to use the internet
as a source for the news and internet itself imposes a rhythm so fast that leaves journalists with little
time to contrast their information (Sánchez Sánchez, 2012).
Journalists have always been aware about existing tensions between the fundamental rights of in-
dividuals and the free exercise of their profession. These tensions have been identied at very start,
from the emergence of the modern conception of privacy in the 19th century (Cornwell & Stephen-
son, 2004; Gaida, 2008; McStay, 2017). We can particularly identify tensions between freedom of
expression on the one hand, and privacy and the protection of personal data on the other. as “the
desire to comment on, analyze, or write about aspects of people’s private lives will always raise ques-
tions about where the boundaries should lie between what is public and what is private” (Harris &
Hughes, 2014, p. 174).
It is well known that new conicts will constantly emerge in this context. Information related to any
anonymous citizen has become part of what Kathy English (2009), editor of the Toronto Star, called
the long tail of internet content, easily “searchable” and permanently “accessible” (Silverman, 2009).
Often, it is enough that a piece of content has been published online for search engines, such as
Google search, to index it and quickly make it available to everyone for an indenite period. While
this is inevitable, and a problem in and on itself, a bigger problem arises when what is published is
related to sensitive information from a journalistic point of view, such as information that contains
errors, content that is potentially defamatory, that can aect people´s privacy or that, even if true,
includes information about an unattering past, long thought forgotten, and that reappears in the
results page of a search engine over and over again.
English (2009) has been approaching these topics for some years now, inquiring about the state of
North American media through surveys with editors in the United States and Canada. Those sur-
veys show that in these countries there is a greater tendency to demand the disappearance of digital
archives, and at the same time, also greater resistance to eliminate news articles as this is perceived
as an assault on the principles of credibility and transparency of the press. According to (Guallar,
2010), these cases represent the most dicult dilemmas that the press and the media face in relation
to the right to information and respect for individual rights, since the harm that a piece of informa-
tion, no matter how small, can cause a person, can be very serious.
All of those tensions are evident in debates about memory and forgetting. Such tensions surface, for
example, in the complicated balance between memory and the news that has always been part of
news-making, and particularly in relation to the so-called right to be forgotten, (Brock, 2016; Jones,
2016; Youm & Park, 2016; Tirosh, 2017; Moreno, 2019).
Within the context of journalism, the right to be forgotten calls for the elimination of information
once it has lost its newsworthiness and thus ceases to be interesting for the public (Castellano, 2013).
This right is particularly relevant for the journalistic profession, as its regulation may determine
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what journalists can and cannot do with certain archival information related to individuals and
when they may be exposed to liability for their actions. But the debate that has been started about
the meaning of this right, and its limits, may also help inform debates about the journalistic profes-
sion itself as new legal obligations and ethical duties can be identied as a result.
Debates may arise in relation to how news making should be balanced against harms to both indi-
viduals and the audience (Roberts, 2019). Ethical dilemmas may arise in relation to when it is jus-
tiable to respond to requests to unpublish content to protect the interests of individuals and when
journalists should not accede to such request to protect traditional ethical news values because there
is no justication to delete already published truthful information (McNealy & Alexander, 2017).
While the right to be forgotten is not a right recognized in every country of the world, with a rela-
tively small number of countries recognizing it in their laws or through judicial interpretation, and
with others rejecting its constitutional compatibility, connections can be identied between the legal
debates around the right to be forgotten and ethical debates related to the exercise of journalism,
the tensions between memory and the news and how journalists should treat archival information
related to individuals and their past. This can be done in the same way that news organizations use
say, First Amendment and other legal rights to justify what information ought to be published or not
(Roberts, 2019).
In this work we explore the legal mandates and ethical guidelines related to the use of archives and
collective memory about the past actions of individuals in current news cycles as a journalistic prac-
tice. By identifying the central parts of the legal debate around the right to be forgotten, we seek to
identify and discuss the central elements that can be incorporated into an ethical debate about the
journalistic profession that pivots around the concepts behind a right to be forgotten and the use of
archival information about individuals when reporting current events.
For this, rst we situate the dilemmas related to journalistic practice and the uses of archives and
then, we situate the limits of such a practice in the rights to privacy, personal data protection and a
right to be forgotten. Then, we identify the elements that should be taken into account when ethical
journalists evaluate their ethical duties when navigating the tensions between memory and highlight
ethical considerations associated with the use or personal archival information in journalism.
2. Methodology and Justication
This work is a qualitative analysis that reects upon journalistic practice and the legal and ethical
duties associated with the use of archival information in the news, particularly when such informa-
tion includes personal information about a person’s past and specically when it can aect funda-
mental rights such as privacy and personal data protection or generate tensions with freedom of
expression and communication rights. Since our qualitative analysis is based on reection, thinking
and interpretation, the analysis was developed during the writing process of the authors, an activity
that is part of the analytic process of qualitative research of this kind (Richardson, 2000).
The sources of the analysis include relevant legal doctrine related to freedom of expression, pri-
vacy and the right to be forgotten; legal doctrine related to ethics, deontology and the practice
of journalism; documentary legal sources that include current and proposed legislation in die-
rent countries around the world, jurisprudence and case law from several dierent jurisdictions, all
analyzed through comparative law. We combined this with our own perceptions and intuitions and
can self-reection to nd insights into our view of the law (Eberle, 2011). For the selection of the
countries, laws, and jurisprudence to study, we used non-probabilistic, deliberate sampling (Otzen &
Manterola, 2013). Our goal is to conduct a deep qualitative analysis (Creswell 2009) with an explo-
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ratory-descriptive scope (Taylor & Bogdan, 1984) that can lead us to draw insights from the studied
legal instruments (Eberle, 2011).
In terms of structure, this article reects rst on the relationship between journalistic practice and
archives and then upon how the law can help inform ethical debates about journalism, to then review
and analyze, through comparative law, how, and if, the right to be forgotten has been constitutionally
recognized and developed around the world. This allowed us to identify what elements justify the
existence of the right to be forgotten and its constitutional sustainability, particularly when it conicts
with the right to free expression. With these elements identied, we analyze the law and then reect on
specic ethical guidelines to be considered when using archival information. Our conclusions sum up
our reections and suggest a set of fundamental elements to be included in ethical guidelines aimed at
orienting how journalists should use archival information in a manner that can be respectful with what
the values, ethical and legal, that the right to be forgotten seeks to protect.
3. Journalistic Practice, Archives and Memory
Traditionally, the creation of news not only involves reporting on current events. It also involves
handling archival information (information from the past) used to frame and contextualize present-day
information. Looking into the past allows journalists to focus and assign value to current events as
only retrospectively events can be properly pondered, understood, and valued. It can be said that
journalists engage in a sort of archeology of information or archival journalism if we borrow terms from
archeology or information sciences.
Archival journalism -that today is exercised through complex information systems- can be unders-
tood as a series of processes aimed at nding, collecting, and communicating data that is not appa-
rently newsworthy today, but that may be of journalistic interest, when recontextualized through the
lens of current events that may need proper framing to be better explained and understood.
We could say that archival journalism seeks to understand the past to be able to explain the future. The use
of archives in journalism allows communicators to understand, control and act upon a universe
of messages that shape our current reality (Lopez Hernandez, 2000). But while “internet archives
make a substantial contribution” to journalism, they “full a secondary role; and given the absence
of urgency in publishing the information, the press has a special duty to verify the accuracy of the
information contained in them” (De Baets, 2016, p. 62).
If we understand news making as a process, it is a process that depends -among other things- on
the capacity to link new information with old data, connecting available archival information with
the current reality so that people that live in it can discover and understand the dierent interrela-
tionships that exist, and contextualize and give sense to current newsworthy events. Between both
dimensions or temporal categories is where communicating information related to the present and
the past and the creation of collective memory start making sense. In this regard, it can be said that
the news making process models the perception of public events and progressively builds our collec-
tive memories through historical events (Calabrese, 2009).
If journalism is both a discipline and a service, then, to meet the standards related to the proper
knowledge and understanding of reality and its correct public communication, archives emerge as
essential (Galdón, 1993) because it is necessary to have the proper documentation readily available
as a tool for accessing memory as much as it is needed. Then, archives are a fundamental and indis-
pensable factor in the exercise of journalism.
However, journalists must ask themselves how they can create and preserve the proper balance be-
tween memory and current events and what are the ethical and legal implications that this archeology
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of information creates within the context of the production of news content. They should consider
that all messages, and consequently, all messages based on archival information, have an essential
component: publishing the truth, one of the “fundamental tenants of the codes of ethics of profes-
sional journalistic organizations” (McNealy & Alexander 2017, p. 395). A (supposedly) informative
message that is not true cannot be considered news because it does the opposite: it disinforms.
However, truth has many aspects, aligned with the dierent types of messages, that correspond
themselves with the three methodological types of human thought: logical truth (messages that con-
tain facts); operational truth (messages that contain ideas) and criteriological truth (messages that
contain judgements). (Desantes, 1992).
Within the context of today’s journalism, which requires reporting on complex news that require
profound information (Odriozola-Chené et al. 2019), the aforementioned makes it necessary to look
beyond logical and operational truths (so prevalent in contemporary media coverage) and focus on
criteriological truth. This can only be achieved when journalists, while exercising their duty to in-
form, look both at the professional duties and ethical guidelines that serve as guidance on how to act
as wee as their own judgment. Journalists must use their own judgment to decide if archival infor-
mation should or should not be made current again as part of reporting current events. In the sense
of archival journalism, journalists must understand that current news and archives are reciprocally
cause and eect of each other within the context of news making (Desantes, 1992).
From a human rights perspective, the rights to seek, receive and impart information must be un-
derstood as multiple aspects of the right to freedom of expression, or collectively, as communication
rights (Sánchez Ferriz & Corredoira, 2017). This also means that journalists must be able to discern,
using their own judgement, between information related to the private lives of individuals that
should be made public due to its newsworthiness -its relation to a current and relevant news event-
and private information that must remain undisclosed. And this of course, can include archival
information that may be resurfaced as part of reporting current events.
Digital technologies have made the situation more complex as “until recently, the fact that remem-
bering has always been at least a little bit harder than forgetting helped us humans avoid the fun-
damental question of whether we would like to remember everything forever if we could” (Ma-
yer-Schönberger, 2009, p. 49). Digital technologies have somewhat suspended “society’s ability to
forget” (Mayer-Schönberger 2009, p. 8) leading, and at an individual level, to the loss of the “fun-
damental human capacity… to live and act rmly in the present” free of the mistakes of the past
(Mayer-Schönberger, 2009, p. 14); and at a collective level allowing society to forget to give “indi-
viduals who have failed a second chance” enabling “mechanisms of societal forgetting, of erasing
external memories” so that society can “accept that human beings evolve over time” and can “learn
from past experiences and adjust our behavior (Mayer-Schönberger, 2009, p. 14). Individual and
societal forgetting aords people the opportunity to change for the better and lets collectives move
on, turn the page. The fact that digital archives can be universally accessed at almost any time, can
be a source for both harm as stress for individuals “who are directly or indirectly connected to new
stories that were published years ago but retrievable today” (Azurmendi, 2021, p. 371).
Seeking tools to reclaim the advantages of individual and societal forgetting and seeking to protect
themselves against harm, individuals may request the unpublishing of certain information that re-
fers to them. This act, unpublishing is dened as “the act of deleting factual content that has been
previously published online in response to an external request prompted by personal motivations
such as embarrassment or privacy concerns” (Schmidt, 2019).
Related to this need of individual and societal forgetting and to the rights to honor, privacy and
personal data protection, journalists will often come face to face with the dilemma of if personal
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information related to a particular person is relevant today and that if such information is worth
remembering and it should be re-remembered by their audiences. In other words, the dilemma is if
archival information should be reported again and made current repeatedly. In contrast, a journalist
must be able to decide when such information must remain archived to protect the privacy and per-
sonal data of individuals, or their right to honor. This is so because to ensure that their information
remains archived, individuals may invoke a right to be forgotten, when available, that may result
in legal remedies that include removing the information from records or disabling access to it from
search engines or other digital archives. But beyond legal liabilities, requests to eliminate, redact or
correct information about a person´s past may lead journalists to ponder if such a claim has merit
and if it is worth altering the record to protect the interests of individuals.
Just as technology makes forgetting more dicult, it also makes it easier to alter archives and re-
cords. However, precisely because “technology makes it relatively easy for news organizations to
alter online content” (English, 2009, p. 3) journalists need to ask themselves if they should do it,
just because they can. This makes it necessary to search for guidance that may inform journalistic
practice and can help them decide.
4. Journalism, Memory and Emerging Rights: How Legal Debates can
inform Ethical debates in the Digital Context.
When we speak of how the law can inform ethical debates, we do not mean to get into a debate of
how well legal prescriptions can translate into ethical ones. We acknowledge that “the roots of all
law lie in ethics: legislation and the common law codify a society’s perceived consensus on rights and
wrongs, and courts then apply those principles to life-specic situations” (Shapiro & Rogers 2017, p.
1104). At the same time, we understand full well that what is legal does not always translate directly
into what is ethical and that both can be even at odds with each other (Kamm, 2016). That is not
the type of discussion that this paper seeks.
What we mean instead is that legal debates centered around certain rights recognized in the law,
particularly rights that have emerged more recently, such as the right to be forgotten, can inform
ethical debates centered about journalistic practice and can be helpful in generating guidelines that
journalists may follow. Rights are not static, they are “dynamic, responsive to new circumstances
and consciousness, and change as our ideas of the good society change” (Schulz & Raman, 2020, p.
53). New rights “often arise from the grassroots level as people experience aronts to their dignity or
imagine a new conception of what is required to maximize human capabilities and then organize to
get and old right revised or a new one recognized” (Schulz & Raman, 2020, p. 37).
Reaching the consensus necessary for the recognition of new social practices obviously takes time.
Norms emerge through a slow and “complicated process of changing interests among the powerful,
the introduction of new technologies, the spread of education and consciousness, and many other
factors” and when social norms change, laws tend to eventually follow (Schulz & Raman, 2020, p. 37).
While the right to be forgotten has not been universally adopted across jurisdictions like many
human rights have, such as privacy for example, it is still interesting to construct an ethical debate
around what it purports to protect. A lack of worldwide consensus about this right, even the lack of
a putative consensus resulting from adoption by a signicant number of states (Schulz & Raman,
2020) should not deter us from such an exercise. In fact, anticipating societal change, including legal
change, can be advantageous as there is more time to ponder, analyze and learn from experience.
Since the adoption of good practices tends to be quicker than the adoption of new legal norms, en-
abling journalists to better respond to societal needs may be equally advantageous. That is why we
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seek to analyze the right to be forgotten and the societal demands and needs it seeks to meet as we
believe it may be a useful exercise that can lead to a discussion that can be helpful in developing jour-
nalistic practices that enable professionals to navigate situations regarding this new societal need.
We believe this is particularly true, and advantageous regarding any overlap between technology
and contemporary journalism, particularly given the speed with which technologies lead to change
and may also expose society to certain harms.
There is an intersection between journalism, technology and the use of memory that implies a
permanent tension between the three. In a current context of hyperconnectivity and surveillance
capitalism it is inevitable that there will be great potential for the violation of fundamental rights,
including privacy and personal data protection, which makes it necessary to explore what other new
and emerging rights are the most appropriate to protect the users of technology, and what laws that
can achieve this goal ought to include.
This situation is especially complex within the framework of a new digital paradigm where a large
number of dierent media exist that represent alternative communication realities, markedly dierent
from the institutional reality of conventional media (Torres-Martin & Castro-Martinez, 2021). These
media escape systematic organization and, thus, can be considered alternative, peripheral or extra-
system. Here we can include digital media that distribute themselves largely through social media
platforms, but also through messaging apps such as WhatsApp, Discord or Telegram.
It is fundamental to understand that journalism is a public interest service and that a democratic
system relies on it because, in general, the information distributed by the media is the only point of
reference that people have to learn about what is happening in the world around them and gather
the information they need to make their own decisions. For Martin & De Pablos Coello (2004) de-
mocracy needs a communication system that allows citizens to: confront dierent points of view,
access to quality information, know about all kinds of newsworthy events and away from all forms
of secrecy and, participation, as complete as possible, in collective decision-making processes.
The changes that the media ecosystem has experienced over the past decades has made it necessary
to rethink the role of new platforms and the debates around their use, or as Castells (2012) would
put it, mass self-communication. For example, unlike what we see in the traditional media ecosys-
tem, digital media allow people to express their opinions and distribute them to large audiences
without the need of an interview published in a media outlet.
Both Castells (2012) and Jenkins (2006) speak of the existence of a new media ecosystem in which
traditional media (radio, the press, television) have lost their monopoly over communication. For
these authors, we live in a transitional age where new and old media collide, which has led to a
scenario we are yet to fully comprehend. The main dierence in this Culture of Convergence is that the
digital ecosystem functions under new logics that signify a paradigm shift and, in order to understand
this digital ecosystem, we must study audiences closely, because changes go deeper than mere shifts
in the ways media are consumed Castells (2012). According to Muro (2009) the origin of this shift
responds to a change in productive systems related to how the internet has changed the rules for the
market. As physical media is abandoned, the traditional distribution parameters change and, in that
sense, the long tail we have referred to aects the production of symbolic goods by cultural industries.
This makes it necessary to look at communication from fundamental perspectives, such as episte-
mology, where the complex phenomenon of communication is directly linked to its legal and ethical
dimensions and how they dictate the actions of communication professionals. Law and ethics to-
gether provide a framework that can be used to evaluate all phenomena originating from or related
to mass communication and its eects.
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All other perspectives that can be used to analyze communication are descriptive in nature, they
either investigate communication itself or its consequences, but do not aim to evaluate them or
critique them from the points of view of justice or of what ought to be good. In that sense, commu-
nication is susceptible of being studied as law and evaluated through the prism of reason and norms
of justice. Communication can be studied as the object of a subjective right that is part of a juridical
science and its corpus of national and international norms (Desantes, 1974).
However, epistemological analysis cannot ignore the practical dimension of communication. As said
before, communication, as a professional activity, faces a complicated, even critical scenario where
journalists endure a great deal of pressure (Mogollón & Gutiérrez, 2006; Gutiérrez Atala et al.,
2016). That is why, one of the rst challenges that a journalist faces when reecting on the profes-
sion from the point of view of ethics and how to apply them to their job is the profession’s sense of
community which already implies a view that is somewhat critical of society.
Journalism ethics can look at legal norms as a tool to orient the communication process, particularly,
in this case, the gathering of information and the use of archival sources. While this could lead
us through a Kantian path where we confront the doctrine of virtue (based on duties imposed
internally) and the doctrine of the law (based on duties imposed externally), specically, in the
case of the right to be forgotten, even if there are no specic laws that regulate or if there is no
constitutional recognition of the right, the capacity to identify the fundamental elements related to
human rights that may enter into conict can help guide the actions of communicators, particularly
in relation to quality control of the nal communication product and in regard to the goal of
satisfying the information needs of the public.
A series of processes and routines are involved in the creation of journalistic communication
products. As argued by Deuze (2005) journalism organizes and denes itself and it is worth looking
into how “this process of denition is structured, and how, in turn, this inuences how journalism
functions” (p. 862). These processes depend on the current realities of the profession as they are
shaped by, among others, precarity (Odriozola Chené, 2019), disruption generated by technology
(Bossio & Bebawi, 2016), or the combination of both (Sánchez Sánchez, 2012), leading to a
profession that faces dierent pressures related to the internet and digital technologies (McChesney,
2003; Bockzowski, 2009; Saltiz & Dickinson, 2008; Beam et al., 2009; Singer & Ashman 2009).
These processes also depend on the structure of any given media company, of adopted professional
ethics codes and enforceable legal norms related to the gathering and publication of information,
the internal and external pressures that a journalist faces, and on the training and work conditions
of professionals. Schulz (2001) considers that the quality of journalism mainly depends on three
conditions: the availability of adequate resources to carry out the journalistic labor, a legal and
political order that protects and guarantees the freedom of the press and media and journalists’
adherence to a series of professional standards they should abide by.
5. From Privacy to Personal Data Protection to the Right to be Forgotten in
the Law
“The Right to Privacy”, the famous article by Samuel Warren and Louis Brandeis published in 1890
in the Harvard Law Review is considered the work that spawned the modern legal understanding
of privacy. This work has inspired legislation and jurisprudence all around the world and in the
United States, has meant a reinterpretation of constitutional law, recognizing, and protecting the
private sphere of individuals (Czubik, 2016) even if this is a right that is not explicitly mentioned in
the Constitution of the United States.
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From the moment the right to privacy appeared in modern society it has been tied to technology
and to the media (Igo, 2018). The right to be left alone as proposed by Warren and Brandeis promotes
the idea that everyone should have a space of intimacy that is completely inaccessible to others,
including the media, unless an individual consents to grant access (Moreno, 2017).
This means that from the start, privacy -a right that is as precious as it is precarious (Igo, 2018) has
been directly concerned with the public image of individuals and the events of their daily lives, and
particularly with those individuals that have gained public notoriety. We are talking about a right
that allows individuals to resist pressures from mass media that, at the end of the 19th century, had
begun to transform the relationships between private citizens and the public society they were part
of (Igo, 2018). Thus, privacy arose as a right to defend against unwanted publicity fueled by techno-
logy (photography being an example) and that signaled a cultural shift in which commercial interests
of (media) companies started interfering with the rights of citizens (Igo, 2018).
The United States rst developed the right to privacy through jurisprudence, with the Supreme
Court recognizing it as a right that is implicit in the US Constitution (Samuelson, 1999; Strauss
& Rogerson, 2002) and reects both a desire to be free from invasions of privacy from the State
(Schwartz & Reidenberg, 1996; Gelman, 1997) and a desire to preserve privacy from intrusions by
the free press. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) and Florida Star v. B.J.F.,
491 U.S. 524 (1989) the US Supreme Court established that the First Amendment of the Consti-
tution protects the right of the press to publish private information but only if the government has
made it public, for example, through court records.
And while the United States has several federal privacy laws, such as the Privacy Act of 1974, the
Family and Education Rights and Privacy Act, the Fair Credit Reporting Act or the Health Insu-
rance Portability and Accountability Act and a constellation of local-level laws that protect online
privacy (National Conference of State Legislatures 2020) it is within Europe where this right has
been more strongly developed during the latter part of the 20th and the beginning of the 21st cen-
turies (Cotino, 2015; Serrano, 2015; Moreno, 2017). The European approach has reformulated the
conception of the right to privacy (Moore et al., 2018) and led to the emergence to other fundamen-
tal rights, such as the right to personal data protection, and eventually, to other associated rights in
secondary law, including a right to be forgotten.
Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (CFREU) recognize
both a right to privacy and a right to personal data protection as fundamental rights protected inside
the EU. Article 16 of the Treaty for the Functioning of the European Union (TFEU), along with the
Charter, give the EU powers to regulate to protect both of those rights. Following European tradition,
the State plays an active role in protecting citizens’ fundamental rights (Strauss & Rogerson, 2002),
including their rights to human dignity, honor, privacy, or personal data, which may serve as limits
to another fundamental right recognized in the Union: freedom of expression and of the press. In
Van Hannover v. Germany (2004), the European Court of Human Rights (ECtHR) established
that the press does not have the right to publish images of public ocials without their consent
when they are not acting in their ocial capacity. The Court clearly established that privacy must
be given preference over the right and the duty of the press to report on something, particularly if
what is being reported does not contribute to democratic debate or otherwise does not involve public
ocials.
Europe has had data protection laws since at least the 1970s (in Germany, Sweden, or the United
Kingdom) and has EU-wide data protection secondary law since 1996. The right to personal data
protection is mostly understood as a right connected to privacy but it has also been treated as a
separate right in jurisprudence, even before it was expressly established as such in the CFREU. In
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Friedl v. Austria (1994), Leander v. Sweden (1987) and Amman v. Switzerland (2000) the ECtHR
established that breaches to the right of personal data protection can constitute breaches to the
right to privacy when information about a person that was not previously available to the public is
disclosed. The Court has also made clear that any personal data processing must be respectful of
privacy and fundamental rights in general. Similarly, the Court of Justice of the European Union
(CJEU) (see Rechnungshof v. Osterreichischer Rundfunk 2003) has established that EU law must
protect citizens from breaches of privacy that may result from personal data processing. In sum, wi-
thin the EU, personal data processing cannot be considered legal if it breaches privacy or any other
fundamental right (Groussot, 2008).
The CJEU unequivocally considered that the right to personal data protection as a standalone right,
in accordance with the CFREU in Promusicae v. Telefónica de España SAU (2008) and Scarlet Ex-
tended SA v. Societe Belge des Auteurs, Compositeurs et Editeurs SCRL (2011). Europe’s inuence in
modern conceptions of privacy and related legislation around the world, that also recognize a separate
right to personal data protection have come to a head with the appearance of the General Data Pro-
tection Regulation of 2018 (GDPR) (Kiesow Cortez, 2021; Vanberg, 2021) which includes a “right to
erasure” that represents the rst instance of codication of a right to be forgotten. Understood as an
associated right to the fundamental right to general data protection and included in article 17 GDPR
as a right of data subjects, the right to erasure gives individuals the right to request that their personally
identiable information be deleted or removed “without undue delay” (Robles 2018, p. 12).
Before that, the right to be forgotten began emerging in the national courts of various EU member
states (Gonzalez, 2014; Jones, 2016). For example, in Germany, the Federal Constitutional Court
prevented the broadcasting of a documentary about the life of a former criminal, reasoning that
remembering the crime might interfere with the social reinsertion of somebody who had already
been tried and sentenced (Casares, 2020). However, the right to be forgotten as we know it today
appeared as a result of Google Spain SL v. AEPD & Mario Costeja Gonzalez (2014) in which the
CJEU interpreted that such a right existed as part of the right to personal data protection as protec-
ted in the 1996 Data Protection Directive.
The Costeja cases established the need that both the rights to privacy and personal data protection
-the basis of the right to be forgotten (Leturia, 2016)- are confronted with the right of the public
to seek, impart, and receive information, particularly when it must be decided if access to personal
information related to an individual should be disabled or if such information should be comple-
tely eliminated from a search engine. In the case, the Court decided that privacy and personal
data protection must prevail save some exceptions, for example involving information about public
gures. The case recognizes the potential harms to the privacy and personal data protection of an
individual that archival information about them can cause if it is made available to the public for an
unforeseeable period in the future, over and over again. The right to be forgotten essentially allows
a person to have the opportunity to erase past information that may paint them in an unfavorable
light and that may have negative consequences on their present life (Anguita, 2016), thus, the right
to be forgotten also implies the preservation of the right to personal honor.
The fact that the right to be forgotten presents clear challenges for freedom of expression around the
world has not deterred other countries from adopting it (Youm & Park, 2016). For example, within
the EU, the right has been recognized by the courts of the Netherlands, oering a more nuanced
denition than Costeja, characterizing it not only as a right to protect individuals against unfavora-
ble information from the past, but as a right to avoid that any information that may, in the present,
be considered excessive, irrelevant, or unnecessarily defamatory haunts a person for the rest of their
lives (Kulk & Borgesius, 2014; Kulk & Borgesius, 2015). In Google v. CNIL (2019), the CJEU has
also determined that while EU law does not compel a search engine like Google to disable access
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to search results about a person worldwide, there is also nothing in EU law that would prohibit the
courts of any of its individual Member states to issue an order that requires information to be disa-
bled or removed globally (See Gstrein, 2020; Zalnieriute, 2020).
Outside of the EU, India and South Korea recognize a right to be forgotten (Youm & Park, 2016;
Yulchon, 2017). In the Americas, Argentinian courts have been pioneers in recognizing the right
to be forgotten (Carter, 2017). In the Natalia Denegri v. Google case of 2020, related to the use of
images or video recorded over twenty years ago, the Argentinian court pointed out that the right to
be forgotten can be an eective tool to conciliate freedom of expression with protecting privacy in
relation to information that has lost its relevance or does not otherwise have any newsworthiness,
or scientic, historical, or public interest (Ministerio de Justicia y Derechos Humanos de Argentina
2021). Argentinian jurisprudence has also established that the right to be forgotten should limit the
circulation of information but not its suppression, restricting or making it dicult for the media to
nd information, particularly when using the internet for that purpose (Ministerio de Justicia y De-
rechos Humanos de Argentina 2021).
Other countries, such as Costa Rica, included a right to be forgotten in its personal data regulation
of 2016 (Vargas Acosta, 2020), while in Brazil, courts have recognized a limited right to be forgotten
(Globo Comunicações e Participações S.A. v. Jurandir Gomes de França 2013; Nelson Curí and others
vs. Globo Comunicações e Participações S.A 2013) in cases of served sentences, acquittals or victims as
long no public interest information is involved (Vargas Acosta, 2020). But Brazilian courts recognized
that there may be a right to request links be taken down from search engines as long as the content
still remains available elsewhere (Yahoo! Do Brasil and Google Brasil vs. DPN 2018) (Vargas Acosta,
2020), thus, establishing a right to de-indexation, rather than a right to erasure; and at the same time,
also denied that there is a right to be forgotten recognized in the law (Google Brazil vs. SMS 2016).
Moving on to North America, Mexico has no law regulating a right to be forgotten and national
courts have not analyzed the compatibility of the right with the Mexican Constitution or if it may
exist elsewhere in national legislation (Vargas Acosta, 2020). In the United States, while the Su-
preme Court has never directly addressed the compatibility of the right to be forgotten with the
First Amendment of the US Constitution, scholars argue that such compatibility would be dicult.
McNealy (2012) argues that for US law, public interest in information does not decrease due to the
mere passing of time.
Others like Werro (2019) argue that settled Supreme Court case law (in cases like Cox Broadcasting
Co. v. Cohn 1975 or Florida Star v. J.B.F 1989) eliminate any possibility of recognizing a right to
be forgotten within the context of American constitutional law. Goldman (2015) argues that Martin
v. Hearst Corporation (2015) eliminates the possibility of recognizing a right to be forgotten that can
be invoked in defamation cases because true events, even if they happened in the past, remain true and
cannot then constitute defamation. Moreover, within the context of American constitutional law, a
right to be forgotten would result in increased liability for online platforms, which could be considered
detrimental for free expression (Martin, 2016) and would, in turn, be considered too heavy a burden
for the freedoms protected under the First Amendment of the US Constitution (Bennet 2012).
Back in South America, in Chile, courts seemed, at rst, ready to embrace a right to be forgotten but
they have since changed their criteria. At rst, it seemed that the Chilean Supreme Court was willing
to give a right to be forgotten -linking it to a right to honor- preeminence over the right to informa-
tion and thus implicitly recognizing its existence (Jorge Abbot v. Google 2015). However, the Chilean
Court seems to have shifted its views two years later and rejected to recognize that a right to be forgot-
ten of a claimant would have preeminence over a right of a news outlet to report on an individual (Val-
verde v. CIPER 2017). Then in Castillo v. Google Inc. (2019), the Chilean Supreme Court conrmed
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an appellate court decision establishing that the right to be forgotten is not recognized in Chilean law
and that search engines are not responsible for the data created by users, even if it includes personal
information on an individual. Finally, conrming the trend, in Olmedo v. Google Chile Inc. (2020),
the Supreme Court reiterated that the right to be forgotten is not part of Chilean law and that such a
right -referring to the Costeja case- only protects citizens of the European Union.
In the case, Olmedo invoked a right to be forgotten and argued that information related to a crime he
committed over thirteen years ago was still available online and this aected, among others, his rights
to the respect and protection of his honor and private life and thus the information should be remo-
ved from the Google Search Engine. The Court reiterated that search engines are not responsible for
information created or published by users and that these are protected by the freedom of expression
as established in article 19 of the Chilean Constitution. This is notable as it signals not only that the
right is not recognized in the country, but also that some courts do not consider the passage of time as a
relevant element when considering if privacy or honor can be harmed by information available online.
But there is one Chilean case that never made it to the Supreme Court (Silva v. Google Inc. 2016)
in which a mother sought to eliminate gruesome images about the death of his son from the search
engine and from two digital news outlets: Diario Noticias and Red Digital. Upon learning about the
request of injunction to a Santiago Appellate Court both Diario Noticias and Red Digital took down
any articles referring to the victim and the associated images. But, even if Google took no action,
the lower court rejected the request of an injunction arguing, consistently with Supreme Court
jurisprudence, that search engines merely index public information that exists online and has been
uploaded by others, and those are not responsible for it. Furthermore, the Court said that Google
should not act as a censor of the information that other actors publish online as they could severely
interfere with fundamental rights, including freedom of expression.
Relevant to our analysis, despite the case’s outcome, we should draw our focus back to the actions
of the digital media outlets that decided to voluntarily take down the news articles. The publishers
of those outlets, in their decision, considered the damage that the continued availability of cruel
audiovisual material about the death of a relative and the constant reiteration of such a memory
may have on the aected party. While not part of the legal argument, here we see the potential
suering caused by images as an element when deciding between archival memory and a right to
forget. We see evidence that the media outlets had been following the legal debates related to the
right to be forgotten, and despite any legal requirements or considerations, decided to go further in
protecting the rights of members of the public.
This serves us to argue that, regardless of the legal development of the right to be forgotten and
beyond its constitutional reception by dierent courts in dierent countries, the fact is that the
legal debates around a seemingly emerging right to be forgotten related to honor, privacy and
data protection -particularly within the context of internet search engines and the relative ease
of accessing past information about individuals online- can help move journalists to reect on the
performance of their right and duty to keep the public informed and how they should treat such
situations during the exercise of their profession.
From the legal development of the right to be forgotten across dierent jurisdictions, we can isolate
a number of elements that should be taken into account as part of ethical considerations around the
evaluation of unpublishing requests such as the one that is at the center of Silva vs. Google, _Inc. First,
it seems that journalists fully understand that there are instances in which honor, privacy and personal
data protection should take precedence over the rights to seek, impart and receive information and
may lead journalists to override their duty to publish the news. For this, relevance, newsworthiness, and
the passage of time seem to be key factors to consider, even if as we have seen, at least in the United
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States, at least legally, public interest in information does not decrease due to the mere passing of time.
How the recurrence of archival information can aect individuals is also something to be considered.
The type of information that has been published is also a relevant factor as sensitive and personally
identiable information may be specically protected by the law but beyond legal requirements, there
may be other types of information that also merit more careful treatment.
A right to be forgotten can limit the circulation of archival information, but it does not have to mean
that all information should be completely purged from collective memory. Disabling access to infor-
mation, or to very targeted pieces of that information (such as personally identiable information)
can be enough to protect the rights of others and archival information can always be used if steps
are taken to minimize its negative impacts.
All of these considerations can help preserve a balance that, while imposing some limits on freedom
of expression, will not lead to unwarranted obstructions to the rights to seek, impart and receive
information and can overall, help journalists make better decisions in a way that allows them to
fulll the traditional duties associated to journalistic practice, while at the same time may help them
respond to concerns from the public that better respond to current technological realities.
6. Archival Journalism and its Limits: The Ethical Duties of Journalists in
the face of a Right to be Forgotten.
From a legal perspective, a right to be forgotten is a right that allows an individual to request the
suppression or elimination of archival information about themselves -generally available in acces-
sible databases such as a search engine- and that may harm their reputation in the present, if there
is a legitimate reason to request such suppression or elimination (Anguita 2016). This implies that
there is a right to seek, impart and receive information available online that meets an exception in an
individual right to be forgotten that can be used to impede that certain archival information related
to an individual can be freely communicated (Vivanco 2016).
Academic literature touches upon limits to freedom of expression and of the press, about the legal
protections of privacy and personal data and the associated legal obligations for journalists, in-
cluding specic works that explore the right to be forgotten and its legal implications (See Mieres
Mieres 2014; Lewis & James 2014; Azurmendi 2015; Azurmendi 2021; Martínez Otero, 2015; Boix
2015; Youm & Park, 2016; Brock 2016; Anguita 2016; Shapiro & Rogers 2017,; Selizer, 2017; Mo-
reno & Gutiérrez, 2018; Anguita, 2018; Anguita, 2018a; Moreno, 2019).
Authors like Erdos (2009) highlight tensions between journalistic work and the European funda-
mental right to personal data protection and others wonder if recent legal developments do not
subordinate journalism to human dignity, and therefore to privacy, making the practice of reporting
the news more dicult (Zirugo, 2021). Similar work has been done in regard to the use of personal
data by the press in the Americas (Toscano, 2017). For LaMay (2003) privacy issues represent a gap
between what journalism ethics says professionals should do and what the law mandates. Everything
from watchdog journalism and privacy (Darko, 2020); the relationship between press freedom, libel
laws and reputational privacy (Smith, 2011); press freedom, hacking and privacy (Dawes 2014) to
how privacy and freedom of expression need not come at the expense of each other as far as jour-
nalistic practice is concerned (Lever, 2015); to the implications for privacy of using social media as
a source (Gross, 2017) have been covered. These are of course, but a few examples.
There are works that explore the ethical implications of the right to be forgotten for media enter-
prises (Santin, 2017), about how journalists should act in relation to the motivations, functions and
possibilities to apply a right to be forgotten (Jaramillo & Castellón, 2017), how the requests to erase
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information from the record should be treated (Watson, 2012; Lafuente, 2015), and, more in ge-
neral, identifying the ethical challenges related to a right to be forgotten from various perspectives
(Labrador & Carter, 2017).
Brock (2016) wonders if the collision of rights leads to the establishment of new rights on the digital
era or if the right to be forgotten represents a threat to freedom of information and the accuracy
of the historical record. Others like Tirosh criticize the right’s focus on deletion and its focus on
individuals (Tirosh 2017). Faisal (2021) ponders how a right to be forgotten may aect the reporting
of criminal convictions. McStay (2017) wonders if such a right makes online media ahistorical.
Brock (2016) places the debate squarely at the center of the struggle between free expression and
privacy when he wonders if “the question of whether the law should require personal information
to be delisted by search engines (or deleted altogether) sits at the new, shifting, and disputed border
between free speech and privacy in the online world” (p. 2). Youm & Park (2016) see an opportunity
when they arm that “the RTBF as a matter of informational privacy can enrich, not undermine,
the values of free speech—autonomy, truth-seeking, or facilitation of democracy—in one way or the
other” (p. 289) although they think that the Court of Justice of the European Union and European
regulation on the matter leave much to be desired.
However, we think it is particularly interesting to explore the ethical duties in relation to journa-
lists as individuals, as professionals that must be able to exercise their communication rights with
freedom but that also bear upon their shoulders the duty and responsibility to keep their audiences
informed while at the same time, striving to protect the rights of others.
In this section, after delving into the legal obligations derived from the right to be forgotten and the
rights that underpin it in primary law, we center on exploring the ethical obligations for journalists
derived from the existence of these rights. This means that we should ponder what are the obliga-
tions for journalists that go beyond the letter of the law, even in jurisdictions where a right to be
forgotten is yet to be recognized.
The importance of analyzing the dilemmas related to these rights is clear as one of the main ethical
duties of a journalist is not to show indierence towards the privacy of others (Moore et al. 2018),
and of course, not to show indierence towards fundamental human rights in general.
Privacy protects values such as “physical security, autonomy, intimacy, dignity, identity and equality”
(Francis & Francis 2014, p. 409). The rights to honor, personal data protection and the right to be
forgotten are related to privacy and seek to protect the same values, although in dierent iterations
and have a specic conguration in their legal dimension that also requires a specic analysis of
their ethical implications. Concretely, from the point of view of the ethical duties of the journalists
and specically, from the point of view of the limits of archival memory and the implications this
has for journalistic work.
While not all problems with the media and journalism should be reduced to the eects the internet
has on them, it is true that the internet does pose new ethical dilemmas for journalists that are directly
related to immediacy and the speed in which information can be disseminated online. Privacy can be
breached due to the fact that social media can enable live transmission of almost any event through
video, audio or even tweets (Moore et al., 2018). Journalists can use any social network in ways that can
be invasive to the privacy and intimacy of others. Thus, they should thread lightly when using these te-
chnologies even if using platforms such as Twitter and others may help boost their professional proles
or lead to reach for the news they produce, or the news media companies they work for.
Ethical dilemmas related to personal data protection include those related to the information
that journalists may nd online. Even if an individual user is the one that disclosed their personal
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information, the journalist must still decide if publishing such information as part of the news is the
right thing to do (Moore et al., 2018). Internet provides journalists with unprecedented access to
information and “the easy access to online information, however, can make some information items
“more public than they ought to be” (Nissenbaum, 2010, p. 56), an “ought” claim that moves us
into the realm of ethics” (Roberts, 2019, p. 207). In other words, the journalist must ponder if the
information published on a personal prole can be treated as information that is no longer private
and thus reported as part of the news.
Regarding personal data protection, journalists also have the duty to make sure that the information
related to an individual they extract from an archive, or a database (digital or analog) is correct and
up to date. They also have the responsibility to ensure that in reporting such information the mis-
takes or inaccuracies it may contain are not repeated and perpetuated. When necessary, journalists
should be prepared to set the record straight. We should not forget that journalists must guarantee
the rigorous and professional reporting of happenings in ways that serve the right of citizens to be
informed, as the values of journalism demand that the information that is reported is reliable, inde-
pendent and serves the public interest (Cruz Álvarez & Suárez Villegas, 2017).
When using information found through an internet search engine, a social network or other online
databases, journalists may face dilemmas that are similar or analog to the legal debates around the
right to be forgotten. This is because in journalism, the use of archival material to contextualize current
events is standard practice combined with the fact that “long-tail damage to reputations has greatly
expanded in the digital era where a simple Google search turns up information that once might have
required courthouse digging” (Edmonds, 2016). Ease of access to past information gives rise to the
need to exercise a right to be forgotten when a fact from the past is referred to, such as an accident or
a crime, and each time a similar case is reported in the news (Jaramillo & Castellón, 2014).
Thus, the right to be forgotten has an unquestionable ethical dimension since, beyond the veracity
or public interest expected of the news, and beyond the legal obligations of news companies, on
digital media, it is especially relevant to evaluate how the passage of time can make it necessary
to exercise forbearance to properly consider the rights at stake (Santin, 2017). Journalists should
“consider the long-term implications of the extended reach and permanence of publication” and
“provide updated and more complete information as appropriate” (Edmonds, 2016).
The links between memory in the news and ethics adds another factor to journalistic practice. The
last few decades have been characterized by a critical vision that has shed light on the dysfunctions
in news coverage of relevant events. This is one of the determinants that have led to a progressive
displacement of traditional media by digital news outlets, social media and in general, the democra-
tization of communication technologies as a source for the news (Chadwick, 2013), which has led
to a blurring of the role of media because journalists have not been able to take ownership of those
new spaces in which they can provide added value.
Internet can be understood as a sort of freely accessible digital newspaper archive. Digital techno-
logies enable almost instantaneous access to virtually any story, no matter how insignicant or how
ancient, even if it did not happen exactly as it was told in the past, if it contained falsehoods or
inaccuracies, or if it had a much dierent outcome than the one outlined in the rst version of the
published story (Lafuente, 2014).
For those seeking to exercise their right to be forgotten, particularly those that may abuse that right,
if we do not wish to see others disrupt history by “lling it with silences that render it incompre-
hensible” (Lafuente, 2015, p. 95) the media and journalists must be capable to carry out the tasks
of updating, correcting, or completing those stories that need it particularly when incorrect news
seriously aect the lives of anonymous citizens (Lafuente, 2015). Abdicating such a duty, the author
The Limits of Memory and the News: Archival Journalism, Law, Ethics, and the Right to be Forgotten (67-92)
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continues, is not the best formula for cultivating the much-needed credibility that the practice of
journalism requires (Lafuente, 2015).
However, it is also necessary that journalists “remain in control of the information they publish”
(Seaman, 2015) and while they should take requests to unpublish or correct information from the
public seriously, showing “compassion for those who may be aected adversely by news coverage”
(The Society of Professional Journalists’ (1996) Code of Ethics, as cited by McNealy & Alexander,
2017, p. 390) and treating “all subjects of news coverage with respect and dignity” (The Radio Tele-
vision Digital News Association (2015) as cited by McNealy & Alexander, 2017, p. 390), they should
also be careful not to go against traditional ethical news values by “deleting truthful, previously
published information” (McNealy & Alexander, 2017, p. 390). Unpublish, however, is an area of
ethical decision making that “remains especially murky in both principle and practice. But growing
awareness of the so-called longtail of news seems likely to inuence more than just the adjudication
of unpublishing requests” (Shapiro & Rogers, 2017, p. 1109).
Finally, however, our general recommendation cannot be other than reinforcing the social role of
journalism as long as journalism is based around the pursuit of best practices that emphasize duty
-i.e., dening principles or standards of conduct, articulating ethical responsibilities that “set a bar
for conduct that points the way to the best”- (Craig, 2015, p. 17); virtue -i.e., the “personal qualities
or virtues” that drive the conduct of those journalists that seek to do work that “models excellence
by pursuing best practices” (Craig 2015, p. 20); and care for others -i.e., adopting best practices that
“involve a true and lasting commitment to engagement with others” (Craig 2015, p. 25).
For this, it is necessary to recognize that news media professionals must be more skillful in their exer-
cise of their communication rights, taking on more responsibility with regard to the act of reporting
the news. What does more skillful mean? That the abilities and best practices of the profession must
be embraced, yes, but mainly that those competences related to properly exercising good judgement
that can lead journalists to adequately evaluate the data or information they gain access to, and that
will open the door for them to make a balanced judgement that can lead them to achieve the crite-
riological truth we have mentioned before.
As Derieux (1983) already asked masterfully, who can ignore that the quality of the news that are
distributed, of the explanations and comments that accompany them, of all publications considered
together, depends greatly on the level of education of the journalists themselves? Without ethics,
journalism is simply bad journalism (Rodrigo-Alsina & Cerqueira, 2019) and can lead to stories that
threaten the basic rights of citizens, including the right to privacy or to honor. As recent experiences
with disinformation and misinformation can show us, journalism devoid of solid skills and lacking
in ethics is an irresponsible activity that abandons its social function and is detrimental, even des-
tructive, to society. Benton (2021) asks journalists to acknowledge that they play a role in preventing
those that want to move on from their mistakes.
Around the world, journalistic codes of conduct establish dierent parameters related to how to treat
request to unpublish information. In Korea for example, national codes of ethics emphasize the need
to “refrain from damaging an individual’s reputation” and to “consider the long-term implications of
the extended reach and permanence of publication,” encouraging journalists to “provided updated
and more complete information as appropriate” (Nah & Craft, 2019, p. 2578). In contrast, in the
United States, unpublishing is seen as a last resort that should be taken only reluctantly (McBride
2014) in extreme cases and rare circumstances (Nah & Craft 2019 citing Tenore, 2010; Myers 2010;
Silverman, 2013). In the United States, newspapers prefer to remove published stories only under
extraordinary circumstances, preferring to keep the bar high when considering the removal of
content published online analyzing situations on a case-by-case basis (Edmonds, 2016). However,
Cetina Presuel, R. y Gutiérrez Atala, F. J.
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although “80 percent of news outlets… had established unpublishing policies” almost half did not
adopt written guidelines and almost none shared it with the public (Schmidth, 2019).
Others argue in favor of looking at context, as the ease of nding online information can make
information more public than it should be Nissenbaum (2010) and because it may be ethically justi-
able to publish certain information for one community, but not for another (Roberts. 2019) as “the
publication of some information (could be) appropriate for a local audience (but) may bring ethical
peril when provided beyond that community” (p. 209).
McNealy & Alexander (2017, p. 401) suggest that news organizations should “(1) make the unpubli-
shing policy available to readers in an attempt to lessen requests; (2) remain cognizant of the duty
of the press to report the truth, which may not always paint the news subject in a favorable light;
and (3) create a policy against unpublication with exceptions for instances in which the individual
making the request is at risk of possible harm.”
We wholeheartedly agree with these authors, particularly on the need of not losing sight of the duty
or reporting the truth, even if this may not always be favorable to the news subject. We also agree
that robust, clear and transparent policies regarding unpublication can both help journalists within
organizations follow guidelines that can make them do their job better with that sense of duty, virtue
and care for others that we have referenced before while at the same time, can help them earn the
trust of the public which may be more willing to accept decisions related to publishing or unpubli-
shing content.
And while we think that those policies can treat granting requests to unpublish -or alter- already
published news as exceptions in order to protect duties of the press related to reporting the news and
letting the public know about truthful facts, we also think that a social reality that recognizes a right
to be forgotten to individuals, or at least a new social norm that contemplates a heightened claim by
private citizens to be protected against the harms of contemporary technologies ought to lead to a
reassessment about what to do in these cases.
Santin (2017) invites journalists to go beyond the legal protections that the right to be forgotten
gives citizens wherever it is recognized, particularly beyond the European denition of the right
and consider, from a deontological perspective, how unpublishing requests should be handled. As
Lafuente (2014) says, provocatively, it may be time to stop considering archives as sacred and consider
that there may be instances in which history may need to be erased or rewritten, particularly when
journalists deal with erroneous or incomplete information, that, due to carelessness or bad practices,
ends up causing everlasting harm. After all, he says, journalistic rigor does not expire.
There are instances in which, honor privacy and personal data protection can have preeminence
over the rights to seek, impart and receive information and even freedom of expression. Santin
(2017) points out that media that have opted to self-regulate in these matters “do not contemplate
citizens re-writing the story however they like, but, instead, to make it easier for any who are not in
the public eye to exercise their right to be forgotten, thus preventing the journalistic activity from
becoming an even greater punishment than a possible judicial sentence” (p. 308).
To repair the damage which any information may cause to the rights of the people involved,
analyzing unpublishing requests from the point of view of either a legally recognized right to be
forgotten, or at least from the point of view of a social norm that expects that individuals will be able
to seek redress for archival information about their past that aects their rights in the present may be
necessary. Based on the review of the legal development of the right to be forgotten across dierent
jurisdictions we have performed in the previous section; we have identied certain elements that can
inform ethical debates around unpublishing content:
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Relevance and newsworthiness are key. What was relevant and newsworthy in the past, may
not be so in the present and the public interest in reiterating past information should be as
clear as possible.
Tied to relevance, the passage of time seems to be a key element as well. Information that
was considered relevant and necessary in the past, may be considered excessive, irrelevant,
or even defamatory in the present.
Another key element is recurrence. The fact that archival information is recorded and exists
may not be the problem in and on itself, but its continued availability and reiterated publica-
tion may lead to aectations of the rights of an individual.
The type of information matters. Personally identiable information may receive specic
protection in the law (through data protection laws) but depending on the factors of time pas-
sage and recurrence journalists may also consider how other information that is not legally
considered sensitive, may harm the subjects of reporting in the present.
A right to be forgotten can limit the circulation of archival information, but it does not have
to mean that all information should be purged from collective memory. Disabling access
to information can be enough to protect the rights of others and archival information can
always be used provided steps are taken to minimize its negative impacts.
Journalists should strive to strike a balance that while imposing some limits on freedom of
expression, will not lead to unwarranted obstructions to the rights to seek, impart and receive
information.
7. Conclusions
This work has sought to use legal debates around the right to be forgotten to illuminate journalism
ethics around the uses of archival information related to individuals. However, we have not sought
to translate the law into ethical prescriptions. Rather, we sought to identify certain elements of the
legal debate, that should be taken into account in ethical considerations, elements that may aid in
making decisions. In its dierent sections, we have explored the interactions between archives, me-
mory and journalistic practice and what limits archival journalism should be subject to, particularly
in relation to the ethical duties journalists face relative to a right to remember or a right to forget and
the evident tensions and debates this generates, particularly when we introduce the variables related
to the protection of the rights to privacy and personal data protection, and particularly the right to
be forgotten, particularly when they are confronted to the right to freedom of expression and the
rights to seek, impart and receive information.
A right to be forgotten need not always entail the complete elimination of information and some-
times disabling access to information can be enough to protect the rights of others. Unpublishing
demands can be met with forbearance. In that sense, there may be instances where journalists, or
media companies that decide that eliminating old news articles may be the right course of action
but only in the most extreme of cases. In any case, when it is necessary to refer to archival news or
to past information about individuals to contextualize present news, journalists must work hard to
justify why the use of past information is absolutely necessary and avoid using it when it is not. A
right to be forgotten can limit the circulation of archival information, but it does not have to mean
that all information should be purged from collective memory. There needs to be a delicate balance
if we also want to preserve the rights to seek, impart and receive information, fundamental rights
that are essential for a democracy and pillars of a free press.
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Our study of legislation and judicial decisions related to the right to be forgotten, has pointed us
towards several concerns directly related to ethics and the practice of journalism that circle around
the elements of relevance, the passage of time and the recurrence of information. In terms of its
relevance, journalists should determine if what was newsworthy and important for the public in the
past continues to be important and newsworthy in the present. To decide on this relevance, or when
deciding if archival personal data should be used in present-day news, journalists should ponder
how the passage of time factors in as information that was considered relevant in the past, may be
considered excessive, irrelevant or even harmful for the lives of an individual in the present. Journa-
lists should also consider how the continued availability and recurrent or reiterated publication of
archival information may lead to aectations of the rights of individuals. Considering these factors
and deciding what is the right thing to do by taking them into account may allow journalists to de-
termine the most responsible ways of using archival information about individuals.
Past data about individuals may be used in current news, but journalists ought to exercise great
care and respect for those individuals and their rights. They should be particularly conscious of any
potential negative aectations on the fundamental rights to individuals, particularly their privacy,
personal data protection and honor, particularly when that information no longer has public inte-
rest, or we are not talking about individuals that would be the focus of the public interest where it
not for that information that was once relevant.
In any case, journalists should understand that sometimes, individuals may have good reasons to
seek control over their archival personal data, and requests to suppress or limit access to such in-
formation should be taken seriously by journalists. Since we are talking about ethical duties and
professional values -the right to be forgotten does not exist as a legally enforceable right in every ju-
risdiction- taking requests seriously implies that journalists have a moral duty to aid in the protection
of the fundamental rights of the individuals they report on.
By closely following the legal debates around the right to be forgotten, journalists can identify ele-
ments that can serve to update the ethical duties they must honor when practicing responsible jour-
nalism for the greater good in a way that can respond to current societal demands. This can help
them navigate the tensions they will encounter when using archival information for reporting the
news of the present. Journalists should strive to appropriately balance their rights to seek, receive
and impart information with the right of individuals to forget their past and move on, and to be
preserved from recurrent reminders of their past actions in ways that may negatively impact their
present lives and their fundamental rights in the present and in the future.
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