The Right to (Not) Be Forgotten, Right to Know, and Model of Four Categories of the Right to Be Forgotten

Abstract

Both at the level of the most basic civil and democratic rights declared at the constitutional level and specifically in the field of archiving, there has long been a fundamental tension between two principles: On the one hand, it is the right to the protection of personality, privacy, and the private sphere, specifically expressed also in the form of the right to protection of personal data and restriction of their disclosure. On the other hand, there is the right of access to information, freedom of inquiry, and similar rights, which can be summarised under the common denominator of the right to know. This dichotomy, in a specific and in a way analogous sense, is also at the level of the relationship between the right to be forgotten and, conversely, the right to be remembered and not forgotten.

Encounters and, in many cases, clashes between these two principles on both levels of meaning have changed in recent years and have intensified, including in court decisions. What implications does it have for archiving, for the creation and preservation of collective memory in society, and for the relationship to one’s own history? What are the implications of the current development of the legal order for the archival sector, within the European Union, especially in connection with the adoption of the General Data Protection Regulation (GDPR), specifically at the level of the application of the right to be forgotten as one of the new rights of the European citizen, which, however, has much deeper and older roots than the existence of the GDPR? How does the newly established right to be forgotten manifest in the field of archiving? What impacts and potential risks can be expected when applying this newly formed right of (not only) the European citizen to archival practice? This chapter will seek answers to the above questions. The chapter will include the presentation of the author’s concept of a model of the four categories of the right to be forgotten, applicable mainly in the field of records management and archiving, but also in a wide range of scientific disciplines.

Motto:

“Do the interests of the living outweigh those of the dead? … Does the privacy of living persons override the importance of historical research and does the right of access give way to the right to forget?”¹

Eric Ketelaar

In 2008, the Landesarchiv Berlin released Klaus Kinski’s mental health records from 1950, when the actor was hospitalised for three days at the Karl-Bonhoeffer-Nervenklinik in Berlin.² Without exaggeration, this case can be regarded as a—fortunately very rare—example in the field of archives demonstrating how poor management of personal data in archives can look, and showing violation of basic principles of personality protection by archives as custodians of vast amounts of personal, including extremely sensitive, data of citizens. The following chapter may thus open with the question: Even posthumously, did Klaus Kinski have the right to have his (mental) health condition forgotten? In other words, did he have the right to prohibit society access to his medical history and learn about his mental health problems?

However, we can also mention another case. In 2010 Germany, a case emerged of widespread, systematic, and long-term sexual abuse of children since the 1990s by the teaching staff, including the headmaster, at the Odenwaldschule reform school in the Hessian town of Heppenheim.³

Not surprisingly, the school went bankrupt shortly thereafter, and after some personal data were leaked to the public, the Hessen Archives, following a consultation with the State Prosecutor’s Office, decided to take over the school records even before the expiry of the retention periods. The intention of the premature transfer of extremely sensitive materials to the archive, which began in 2015, was to enable the maximum possible and timely extraction of the data in the records containing data on sexual abuse, that is, providing access, not only for the purposes of the investigation but also for various research purposes. The transfer also includes a number of records that would probably have been legally destroyed in the shredding process had it not been for the occurrence of those horrific acts. Nevertheless, this situation was completely opposite to the Klaus Kinski case. One of the reasons why the archive took over the highly sensitive materials prematurely was to protect the personality of the victims, as the records transfer was preceded by cases of leaks of data from the incriminated documents to the public.

The intention of transferring the records into the archive was made to enable the maximum possible extraction of the data they contain and thus their accessibility, however the whole system of such accessibility had to strictly respect the protection of the personality of those concerned. Where does the right to be (not) forgotten stand here? When compared to similar cases of other schools, the archiving of an unprecedented volume of material conveys that society is demanding the right to memory (similar to the right to know, the right to information), and that likewise, those affected have a right to have society remember inhumane instances of tarnishing the law and harming people. Did victims of sexual violence have the right to have the despicable acts committed against them remembered?

Both at the level of the most basic civil and democratic rights declared at the constitutional level and specifically in the field of archiving, there has long been a fundamental tension between two principles: On the one hand, it is the right to the protection of personality, privacy, private sphere, specifically expressed also in the form of the right to protection of personal data and restriction of their disclosure. On the other hand, there is the right of access to information, freedom of inquiry, and similar rights, which can be summarised under the common denominator of the right to know.⁴ This dichotomy, in a specific and in a way analogous sense, is also at the level of the relationship between the right to be forgotten and, conversely, the right to be remembered and not forgotten.

Encounters and, in many cases, clashes between these two principles on both levels of meaning have changed in recent years and have intensified, including in court decisions. What implications does it have for archiving, for the creation and preservation of collective memory in society, and for the relationship to one’s own history? What are the implications of the current development of the legal order for the archival sector, within the European Union, especially in connection with the adoption of the General Data Protection Regulation (GDPR), specifically at the level of the application of the right to be forgotten as one of the new rights of the European citizen, which, however, has much deeper and older roots than the existence of the GDPR?⁵ How does the newly established right to be forgotten manifest in the field of archiving? What impacts and potential risks can be expected when applying this newly formed right of (not only) the European citizen to archival practice? A very important precursor to all these issues is the fact that the responsibility for personal data management and for the protection of the personality and privacy of those whose footprints can be found in the records and archives, lies with all the actors: archives and archivists, requestors for access to information, including scientific researchers.⁶ This responsibility cannot be avoided and for this reason alone it is important to try to understand the right to be forgotten, the right to know and their complicated relationship.

5.1 The Right to Be Forgotten and the European General Data Protection Regulation (GDPR)

In recent years, there has been a clear tendency to increasingly protect the personal data of specific people in written material, both archival and non-archival. The contradictory and parallel existence of two basic principles, one of which advocates the accessibility of information and the other the protection of information linked to the protection of privacy and personality rights, including the protection of a name, reputation, and honour, is also reflected in European legislation and case law. The following two judgements represent a paradigmatic example of two completely opposing views in this field. First, there is the 2009 judgement of the European Court of Human Rights (ECHR), Section II,⁷ in favour of broad and unrestricted access to information, or freedom of expression within the meaning of the European Convention for the Protection of Human Rights and Fundamental Freedoms.⁸ On the other hand, there is the 2014 decision of the Court of Justice of the European Union (Grand Chamber) in the dispute between Google and the Spanish Data Protection Authority.⁹ This judgement, in turn, refers to the right to protection of honour and reputation and, already at that time, to the “right to be forgotten”. In its judgement, the Court of Justice, in the context of the interpretation of the European Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data, determined that internet search engines also function as data controllers and should behave and comply with their data protection obligations accordingly. However, it is the ECHR which, in its case law from recent years, particularly in relation to the interpretation of Article 8 “Right to respect for private and family life” of the European Convention on Human Rights, has also issued some fundamental comments regarding the right to be forgotten, including some cases concerning the relationship of archives and archiving to this right. This case law is discussed in more detail in Sect. 2.1 in Chap. 2. The right to be forgotten referred to in these judgements then brings us to the European regulation issued in 2016, which has generated an enormous response throughout the European Union, not excluding archival communities. Let us now take a closer look.

A European standard that has already raised great concerns in the archive industry before it came into force is the General Data Protection Regulation (GDPR). It is a regulation that takes precedence over the national legislation of the Member States of the European Union. Part of it is valid normatively and without the possibility of modification in national legislation, part of it can be adapted. The historical predecessor of the GDPR was Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. This Directive already contained some principles that were later developed by the GDPR. These included, for example, the notification obligation in the case of collection of personal data on individuals, the limitation of the purpose of processing personal data to the original purpose of the collection, the need of consent of the individual before any further sharing of their personal data with other entities, security considerations, the right of an individual to have access to their personal data collected by the data controllers, including the right to rectification, and the establishment of the general responsibility of data controllers for personal data management. While this Directive also introduced the principle of limiting the storage of personal data to a period not longer than necessary to fulfil the original purpose of the collection of such data, unlike the GDPR, it completely failed to take into account the public interest aspect of data archiving and the exemptions set out for archiving purposes.

The European GDPR most significantly reflects the growing tension between the protection of personal data on the one hand and the right of access to information and freedom of inquiry on the other. This tension is then most concentrated in one of the rights newly established by the GDPR, namely the right to be forgotten (right to erasure).¹⁰

Even before the release of the GDPR, some archivists and historians in Western Europe were already aware of the risks of the GDPR impact on archiving, supporting a petition by French archivists prior to the approval of the GDPR called “Adjourn the adoption of the regulation about personal data” (“Citoyens contre le projet de réglement européen sur les données personnelles #EUdataP”).¹¹

The petition referred mainly to legal and inheritance purposes, proving ownership and the like, which is difficult to achieve without specific people with specific names preserved in records. It also took into account another possible right of the citizens in a democratic state, the right of access to information. French archivists sent the petition all over Europe and collected more than 50,000 signatures. It was signed by archivists and historians all over Europe. The petition was victorious at the end of 2013 however, the European Council postponed the discussion of the GDPR project until 2015. Although the petition ultimately failed to prevent the publication of this European standard and thus the codification of a new right to be forgotten, it did lead to some not insignificant successes in incorporating some exemptions into the text of the regulation. So what exactly is the right that a citizen of the European Union acquires with this new right to be forgotten, and where does this right stand in relation to the right to information in the field of archiving?

The right to be forgotten (right to erasure) is defined in Article 17 of the GDPR as follows: “The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay”, in particular where the personal data are no longer necessary for the purposes for which they were collected or otherwise processed.

If this were to remain the case, it would be an unmitigated disaster of immeasurable consequences for the entire archival and historical community and for the whole knowledge of history in general. Fortunately, a citizens’ initiative and the above petition were at least partially successful.¹² The initiative has led to certain and very important limitations on the otherwise very broadly worded right to be forgotten in the final text of the GDPR. The right to be forgotten can be disapplied for several fundamental reasons.¹³ In addition to, for example, to the public interest in the field of public health or the exercise of the right to freedom of expression and information, they also managed to establish archiving purposes in the public interest, scientific or historical research purposes, and statistical purposes as separate grounds for not exercising the right to be forgotten.¹⁴

Moreover, they also successfully exempted, among other things, historical research and archiving in the public interest from the so-called purpose limitation that the GDPR introduces. What exactly does this mean? The GDPR establishes the purpose limitation principle as one of the principles of personal data processing. According to this principle, personal data must be “collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes”.¹⁵ However, in the same paragraph of the otherwise generally formulated purpose limitation, it is further explicitly stated that “further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall, in accordance with Article 89(1), not be considered to be incompatible with the initial purposes”. Eo ipso, the purpose of archiving or historical research may be included within the purposes for which personal data may be collected.

Yet, there is another exemption to the general procedural setting of the processing of personal data, as defined in another provision of the general principles, which is equally important and perhaps even more important for archival and historical science. It is the principle of storage limitation. The wording states that personal data “must be kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed”.¹⁶ However, even in the case of the storage limitation principle, there is an exemption: “personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) […]”.¹⁷

It would thus seem that the situation is quite obvious and archiving in the public interest has acquired the status of a legitimate purpose under the GDPR (purpose limitation principle), that is has been included among the domains for which the processing of personal data is explicitly permitted even without the consent of the data subjects, and at the same time has received a general exemption allowing it to process personal data for a period longer than the original purpose of processing (storage limitation principle). Yet, the situation is not as clear-cut as it might seem at first sight.

Even though they have earned exemptions from the generally formulated and applied principles of personal data processing, the purposes of archiving, scientific and historical research or statistical purposes are ultimately weakened and restricted in several key respects. This is most significantly reflected in two of the principles of personal data processing introduced by the GDPR, namely the “data minimisation” principle and the “storage limitation” principle.

Regarding the storage limitation principle, it is the fifth GDPR article defining the main principles for the processing of personal data, which introduces an additional rule concerning the possibility of maintaining personal data for a longer period than is strictly necessary for the original (usually official) purposes, namely for archiving in the public interest, for historical or other scientific research or statistical purposes: The archiving purposes in the public interest, historical or other scientific research purposes, or statistical purposes apply—as the conclusion of the “storage limitation” principle reads—only “subject to implementation of the appropriate technical and organisational measures required by this Regulation in order to safeguard the rights and freedoms of the data subject”.¹⁸ What exactly does this very vague wording “appropriate technical and organisational measures” mean? It is only specified much later at the very end of the GDPR.

The key Article 89 of the GDPR, entitled “Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes”, contains a somewhat complicated formulation: “Processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, shall be subject to appropriate safeguards, in accordance with this Regulation, for the rights and freedoms of the data subject. Those safeguards shall ensure that technical and organisational measures are in place in particular in order to ensure respect for the principle of data minimisation. Those measures may include pseudonymisation provided that those purposes can be fulfilled in that manner. Where those purposes can be fulfilled by further processing which does not permit or no longer permits the identification of data subjects, those purposes shall be fulfilled in that manner.”¹⁹

Let us add that the GDPR, both here and in its entirety, is primarily concerned with pseudonymisation of personal data as defined by the GDPR itself, that is, in the sense of replacing personal data (e.g., a name) with another identifier for the purpose that the personal data cannot be further attributed to a specific personal data subject. In such a case, the possibility of re-establishing a hypothetical link between the personal data and their subject is preserved. The GDPR also very briefly refers to the possibility of data anonymisation, where the link between the personal data and its subject is irreversibly broken. However, it explicitly states that the GDPR does not apply to such anonymised data.²⁰ On the contrary, the GDPR primarily applies to pseudonymised data, precisely because such data retain a potentially retrievable link to persons as their subjects, thus still preserving the essential personal character.²¹

In any case, however, the core of the regulation, which is crucial for archival and historical science, is based on conditionality: If it is possible to erase the specific identity of a person, the obligation to de-identify a specific person applies, provided that the public interest of archiving and the scientific and historical research objectives or statistical purposes are not compromised. And this is where the very touchstone of the Regulation comes into play: Who will be the imaginary arbiter to judge whether the purposes pursued—for example, the archiving purposes in the public interest, scientific or historical research purposes, and so on—can be fulfilled even if the identifiability of the data subject, that is, the link of the data to specific natural persons, is broken? Will independent expert bodies be established? Will the assessor be a public authority, such as the ministerial department responsible for archives, or data protection authorities? What criteria will be used to assess this condition, since no specific criteria have been laid down in the legislation? Will it not be the courts and, in the last instance, the constitutional courts that will set the basic boundaries, define the terrain and essential rules in their judgements and rulings? What will be the case law of the courts that will one day resolve disputes as to whether the purpose of archiving, historical and other research, and statistical investigations can be circumvented when the link between archives and historical sources and specific persons is broken? To what extent will this reflect the current trend of increasing data protection? Should we expect that the interpretation of those provisions of the GDPR that open up room for very different interpretations of the right to be forgotten evolves accordingly? Will the effects of the implementation of the GDPR in the archival space only manifest on the level of providing access to researchers, and therefore only on the level of an even greater elimination of personal data on copies of archives presented to requestors, most often by using the tool of data redaction? Or will the principle of data minimisation eventually be reflected in the increasing pressure for “hard” irreversible anonymisation, especially before the records are transferred to archives for permanent preservation?

A recent experience in the Czech Republic concerning the corpus of historical sources provides an illustrative example and proof that this is not a virtual problem. In 2011, the case of the (non-)preservation of the records of the 2011 Czech census opened in the wider media space. The request of the Czech Office for Personal Data Protection at that time was to anonymise personal data in the census records. This triggered a response from the National Archives, which pointed out that after anonymisation, the census forms would lose practically all their historically valuable informative value. Nevertheless, all the personal data in the census records were anonymised before being transferred, regardless of the assurances and guarantees given by the National Archives that it would not make the data from the census forms available to anyone. A detailed analysis of the treatment of personal data in census records in foreign comparative perspective is presented in Chap. 7.

In general, however, it can be stated that losing the possibility to identify persons in archival records (census records being only one illustrative example) together with the application of the right to be forgotten in the context of records management and archiving will, to a greater or lesser extent, leads to what can be described, with a little literary licence, as the gradual “depopulation of history”.²²

5.2 The Right to Be Forgotten Versus the Right to Memory, the Right to Know

European law through the GDPR intends to introduce a remarkable right—the right to be forgotten. In the near future, it is indeed not impossible that people, and therefore potential historical actors, will be allowed to systematically erase the traces they leave behind in reality and therefore in history. However, one may ask why the right to be remembered could not equally be created, written down, and codified? Why should not citizens be able to claim that a certain imprint should be left in reality and in history? Such a right, however, need not be formulated merely as a person’s right to preserve the memory of their own actions. It can also be defined in the sense that society as a whole also has the right to be remembered for the deeds and actions as members of that society, whether for their positive contribution or, conversely, their negative impact. At this point, the right that comes into play is the right of a society to hold its individual members accountable for their actions, the pursuit of justice, but also to enable the creation of a historical memory of the society, its historical consciousness, including coming to terms with its own past.

The problem can also be posed in another way: The European law has declared the right to be forgotten in the specific context of personal data management On the other hand, the right to preservation of documentary, cultural, artistic, scientific, intellectual value has not yet been anchored in the law (leaving aside the specific provisions of certain special legislation relating to, e.g., cultural heritage preservation, intellectual property rights, etc.)—apart from the statutory obligations usually imposed on public law creators to propose a certain part of their records for archival appraisal of documents and archives for storage, or, in some legislations, a certain corpus of records that should be permanently archived²³ (on the constitutional level, there is only the right to information, the right to freedom of research, etc.). We could also ask whether, in addition to the right to be remembered, the duty to be remembered, the duty of memory should also be formulated in a certain sense.

The right or, in a way, a kind of moral obligation of memory that society might require reflects the question to what extent not only the public entity, but ultimately the individual himself as a private person, has any right at all to dispose of his records that bear the traces of their actions. We know from history many famous cases where the creator of records and also of other objects of high cultural, artistic, intellectual, or scientific value, destroyed his own creations or asked for them to be destroyed, a wish very often unfulfilled. To mention probably the most famous of them: Max Brod, as is well known, not only did not destroy Kafka’s texts against Franz Kafka’s express wishes, but also began to publish them. Kafka, by this notorious will (including the wish to destroy the letters already sent by him and to him), actually asked to exercise something that in a way corresponds to the right to be forgotten, just as the GDPR implements it in a somewhat different context.

In the end, the fundamental question is the question of the ownership of records, works and creations, or the issue of their private or public status. This question remains even in the case—and precisely in the case—when the person in question is their creator himself. In the case of public figures, the situation would seem to be quite clear. If they create or receive records in the exercise of their public functions, the records do not, strictly speaking, belong to them. Yet, in the case of private persons or persons outside the exercise of public office, politics, and the like, the situation is much more complicated.

In layman’s terms: Did Kafka have the right to destroy his manuscripts? And vice versa: Did Brod have the right to preserve and publish these manuscripts against Kafka’s will? Victor Hugo had pointed out this problem much earlier: “A building has two things: its use and its beauty. Its use belongs to its owner, its beauty to everyone, to you, to me, to all of us. Its demolition is therefore ultra vires.”²⁴

Although Hugo’s statement applies primarily to architectural monuments, it can be applied to any work of art or other general quality, including written monuments. And in a way, it reflects the complexities of ownership and disposition of dealing with written material of a non-artistic nature that has some significant value (scientific, intellectual, emotional, etc.) beyond its purely private significance for personal or family memory. But even here, in the apparently quite private sphere of the family, the closest relatives, the clan, the meaning of a record or other artefact extends or can extend beyond the boundaries of one particular individual. Documents may be valuable for family and family memory. We may once again ask: Do we really have the (moral) right to arbitrarily destroy written monuments of our ancestors? Is there not a family obligation to our ancestors and towards future generations—in this case to preserve family written memories?

It is certainly obvious that the question of the applicability, feasibility, and possible legal enforceability of the rights of the society thus postulated, or the obligations of the creator of records and other artefacts, is quite different. Who can compel an author not to destroy his texts, a painter not to destroy his canvases the moment they have not yet left his studio? A quite different moment comes into play here, namely the moment of responsibility, and a responsibility quite different from the responsibility or obligation to comply with legal norms. We can therefore ask a question of principle: Does the creator of a work with a significant cultural, artistic, intellectual or scientific value (but also value bounded by the private sphere of family, clan, etc.) have the full right to freely (and possibly arbitrarily) dispose of “his” work?

However, the question of the ownership of “one’s own” records, or their public or private status, is still very topical today, even for persons in the highest public offices. I address the problem of public and private status of records in detail, with an emphasis on demonstrating this issue in some complicated cases, in a separate study.²⁵ Here, just for the sake of illustration, let us mention, for example, that to this day American presidents claim at least some of the materials created during their presidency. It is, after all, a tradition that goes back to the time of George Washington. However, the ambiguous status between public and private and the problems of its determination are also present in other advanced democracies such as France and Germany, as is analysed in the text cited above.

The examples given of the fate of Franz Kafka’s estate or the relationship of American presidents or top French or German statesmen to “their” records mirror the growing awareness in society of the right of memory, the right to be remembered. A right, in which it is expressed that there is something like a duty to remember the traces of one’s deeds in reality. At the same time, today’s societies are becoming increasingly aware that this right and duty is also subject to the most powerful of this world, and that it also affects in some way those who create work of art and values that reach beyond their own individual sphere.

Thus, the right to forget, the right to be forgotten and, on the other hand, the right to remember and the duty to remember, which extends far beyond the motivation of the possibility of controlling the actions of public figures, meet in an interesting counterpoint. Archives and archivists, then, should constitute one of those places that should be involved in the proper balancing of such a struggle.

The clash between the right to be forgotten, the right to remember, and the right to know, takes place on another fundamental level: At present, there is an increasing call for the protection of privacy and private sphere of the individual, expressed strongly on the level of protection of personal data, on the other hand, there is also an increasing interference in personal privacy by both state authorities and private entities. Both, governments, including intelligence services, and private entities are increasingly making significant, widespread, and extensive intrusions into the private sphere, especially in concerning the traces we leave in the digital world. Often, the line where privacy ends and begins, the inviolability of which is usually guaranteed directly by the constitution, is blurred. Very well known are programmes such as PRISM, the US National Security Agency programme launched in 2007 to monitor electronic communications between citizens, the existence of which was revealed by Edward Snowden in 2013. We can also mention a similar secret programme, Tempora of the British secret service Government Communications Headquarters (GCHQ), launched in 2011, which monitors (and temporarily stores) not only telephone calls but also internet communications (emails, Facebook, etc.), again in a mass manner; this monitoring is not targeted at a specific suspect.

Recently, the USA has also been in the throes of a scandal over data from the website disruptj20.org, which served as a coordination point for opponents of President Trump who planned to organise protests on the day of his inauguration on 20 January 2017 (hence the name of the website).²⁶ The US Department of Justice required the site’s provider to deliver in bulk the personal information of all visitors to the site (including names, addresses, phone numbers, email addresses, payment methods for services, credit card and bank account numbers, and records of the types of services used by the user), not just specific suspects. The US District of Columbia Superior Court ultimately ruled in October 2017 that the webmaster must provide data of registered users directly linked to the Disruptj20 website, but does not have to hand over information about common—unregistered—visitors to the site.²⁷

Orin Kerr, an American law professor, points out that the issue is really one of appropriate and permissible moderation in web viewing.²⁸ Kerr underlines the point that in the physical world the boundedness of private space, such as an apartment, is quite obvious and more or less unambiguous. Investigating authorities can enter a suspect’s apartment if they have a warrant, but they cannot search other apartments in that building owned by other persons. But this clarity is blurred in the digital world. It is not clear whether a mass search of a particular website content and personal data corresponds to an imaginary specific suspect’s apartment, or whether it is an entire house and thus an unwarranted invasion of the private space of persons not addressed as suspects.

In the Czech Republic, for example, the question of whether or not the Military Intelligence Service, one of the three Czech intelligence services, should be given the power to monitor text communications via mobile operators and internet communications via the web has been intensively debated in recent years. The amendment to the Military Intelligence Act was approved in 2021. In the original draft of the amendment, this intelligence service was to receive the power to monitor the content of mobile and internet communications as well. However, this provision was not approved during the legislative process and the Military Intelligence Service was given the ability to monitor only the metadata of internet communications in cyberspace, not the content itself.²⁹

It is only natural that the state, including the secret services, must seek new tools to counter violations of the law, including terrorism, precisely when criminal activity is facilitated by the unprecedented development of communications and other technologies, especially in cyberspace. Perpetrators can much more easily organise and coordinate without the possibility of standard tools of control and supervision of their activities by the security forces. The state and intelligence services must adapt and therefore develop new tools, including surveillance. However, the question is how the boundaries of this surveillance should be set and established with regard to privacy protection.

The relationship between the right to be forgotten and the right to know and the right to memory is ultimately shaped in a specific way at the level of disclosure, as opposed to individual disclosure in, for example, archival research rooms. This is where the responsibility of the researcher, scientist, journalist, and so on for working with personal data and data concerning a person’s privacy and intimacy comes into play in a fundamental way. Some legal systems, even within the European Union, explicitly allow for the disclosure of personal data without the consent of the individuals concerned. One of such systems can be found in Germany; at the federal level the country has allowed the disclosure of personal data without such consent on the condition that “it is necessary for the presentation of research results on events in contemporary history”.³⁰ This, of course, does not mean that the researcher thereby obtains a universal placet permitting the publication of any personal data and in any form. Usually—and this is also true in Germany—not only civil but also criminal liability for the misuse of personal data is then established. There have already been some judgements, including from constitutional courts, which have held researchers responsible for the data they publish. A recent case heard by the Constitutional Court in the Czech Republic is illustrative. The 2017 Constitutional Court ruling states the researcher’s responsibility for their own historical research.³¹ On this basis, historian Eva Nečasová had to apologise to the daughters of Hugo Salm-Reifferscheidt for the claims she made in her book “Cui bono restituce?” published in 2006, and in the work “Cui bono restituce II” published a year later,³² although these were a substantial minority of the claims challenged by the applicants. The Constitutional Court found, inter alia, that the historian “presented her findings in a manner which […] is capable of interfering with the rights of other persons in a court of law”. The Court then went on to highlight that “freedom of scientific inquiry (as is the case with all human rights) also has its limits and ends where it conflicts with other constitutional rights (e.g. the right to life, human dignity); ethical standards are also a natural corrective to freedom of scientific inquiry.”³³

Once again we can see that when it comes to data disclosure and researcher’s responsibility, there exists a fundamental tension between the right to know, the right to information and access to it and, on the other hand, the right to be forgotten, the protection of personal data, personality rights and privacy that can also be expressed in the relationship between scientific research and basic ethical and moral rules.

Whether it is the disclosure of information, individual access to it, or the preservation of information as such, the right to be forgotten comes into play in one way or another in all these situations. The following part will present a proposed model of the four categories of the right to be forgotten, which I will use not only to highlight the multi-layered nature of the right to be forgotten, but also to present it as one possible tool to be used for adapting access to information and protection policies in records management and archiving.

5.3 Model of Four Categories of the Right to Be Forgotten: Temporary Versus Permanent Right to Be Forgotten—Data Anonymisation and Pseudonymisation

In reference to the GDPR, prominent French archivists Hervé Lemoine and Bruno Ricard have recently used the expression “droit à l’oubli temporaire” (“temporary right to be forgotten”) to refer to the moment when data telling about private life in France are inaccessible to the public for a certain period of time, based on the established closure periods.³⁴ This phrase is very well chosen. At the same time, I have used it as the initial inspiration to develop a model of the four categories of the right to be forgotten, which I will present in the following text.

The model of the four categories of the right to be forgotten is based on the underlying assumption that during the processing of data, including personal data, the destruction of records or the irreversible anonymisation of data is not the only way to exercise the right to be forgotten. Another way may be to prevent access to them. There are, as I will demonstrate below, essentially four basic forms in which the right to be forgotten can be applied. On this basis, it is possible to systematise four categories of the right to be forgotten.

In principle, there are four basic categories of the right to be forgotten, which I propose to name (in order of their strength):

• 1. a “permanent absolute” right to be forgotten

• 2. a “permanent limited” right to be forgotten

• 3. a “temporary absolute” right to be forgotten

• 4. a “temporary limited” right to be forgotten

Let us take a closer look at how the different categories of the right to be forgotten manifest in the archival sphere and in the archiving process. The implications of the individual categories of the right to be forgotten for the processes of data anonymisation and pseudonymisation in records management and archiving, including the policies of archival appraisal and records destruction, will be discussed in more detail in Chap. 8 in Sect. 8.2.2.

Let us start from what I call the weakest layer, that is, the “temporary limited” right to be forgotten. This layer corresponds to the vast majority of the material preserved in public and private archives. These are granted virtually permanent access for official purposes (hence the term “limited”), but denied access for private purposes for a certain period of time (hence the term “temporary”). Among the reasons for such restriction of access are the standard range of legal tools commonly used in legal systems around the world. These may be general closure periods or specific closure periods applied to selected types of records or data. Very often, specific closure periods are imposed for access to personal data and data relating to an individual and their privacy and personality. However, the protection of banking secrecy, classified information and the like also fall into the same category.

The second category is the “temporary absolute” right to be forgotten. This substitutes a specific situation that can be encountered in the archiving of private creators and has recently begun to make its way into the field of public archiving and public creators. Access is completely (“absolutely”) restricted to all requestors for a certain period of time (“temporarily”). In the case of private entities, access is restricted by the will of the person handing over the material to the archive based on their free choice. Typically, such cases include personal estates. In this case, access to the archives is governed by the specific decision of the entity that transfers the material to the archives for archiving. Recently, however, there have also been some cases of archiving in the public interest, even for very important groups of public records. A crystalline example—analysed in detail in Chap. 7—is the time capsule tool, which Australia started to use for census documents in 2001 and which Ireland is implementing for the census in 2022 as well. The archives are sealed for a period of time (in this case 99 or 100 years) during which they cannot be accessed for any purpose, including requests from the courts. After this period, either the right to be forgotten ceases to be exercised altogether, or it moves into a different category.

The following two categories of the right to be forgotten, “permanent limited” and “permanent absolute”, represent a stronger form of protection. Access to records and archives over which one of these two categories of the right to be forgotten extends its protective wings is permanently restricted. A very common and probably the most frequent reason for the application of one of the categories of the permanent right to be forgotten is the protection of an individual’s personality and privacy. This also opens up the area of post-mortem protection of personality rights, privacy, and intimate sphere. This issue is discussed in detail in Chaps. 2, 3 and 4. I will thus mention it only briefly.

In the case of “permanent limited” right to be forgotten, the weaker of the two categories, access is permanently restricted, but only to certain groups of requestors. This is most often the case when access to archives or records is denied to private research requests, while access for legitimate official purposes is granted. In the case of public records before their archiving phase, this is true for records with infinite retention periods. These are very sporadic cases, but they do exist. In France, but also in some other countries, they include, for example, records containing information that could lead to the production and use of nuclear, biological, or chemical weapons or other means of mass destruction.³⁵ Such documents will never be transferred to the archives and will remain open only to the creator or a very limited group of other authorised bodies.

However, at the level of archiving, a much more common reason for exercising the permanent right to be forgotten is to protect an individual’s personal, private, and intimate spheres. At the same time, this is the level where post-mortem protection comes into play, that is, the protective layer that includes the protection of personality rights and the protection of the private and intimate sphere, applicable even after the death of the person. It is thus a level that is not normally covered by the rules dealing with the processing and protection of personal data, as these are usually only linked to the living. And here also lies one of the most important sources leading to the distinction between the permanent limited and permanent absolute rights to be forgotten. Their profiling can be very well illustrated by the model of personality spheres, which has its roots in Germany in a judgement of the Federal Constitutional Court.³⁶

The model of personality spheres assumes the existence of three spheres, which can be imagined as three concentric circles of different diameters. The broadest social sphere represents a person’s public life in a broad sense and includes the performance of their life in society, in public space, including work life (unless it is subject to specific confidentiality or at least not purely private), activities on open social networks, in media space, and so on. None of the categories of the permanent right to be forgotten applies to this sphere. A narrower circle is represented by the private sphere, which corresponds to life within the close circle of family, close friends, and private life in one’s own home. This sphere can be entered under certain circumstances. If we compare it with the four-category model of the right to be forgotten, it correlates partly with the temporary right to be forgotten and partly with the permanent limited right to be forgotten. At the same time, it is a sphere in which the various public interests that come into play should be weighed and balanced when it comes to the question of whether information from this area can be opened for a particular purpose. And finally, we come to the intimate sphere and personality; these represent the core and are or should be absolutely inviolable.

Among the four categories, the personal intimate sphere then corresponds to the “permanent absolute” right to be forgotten. In part, however, the permanent absolute right to be forgotten also extends to the private sphere, which, as Volker Epping rightly summarises, is always more akin to the intimate sphere than to the social sphere.³⁷ The space in which the “permanent absolute” right to be forgotten extends, manifests or should manifest itself clearly in the area of records management and archiving, in the sense that records/archives entering its dominion should be irreversibly destroyed as soon as possible—during the archival appraisal of records and shredding process at the latest.

The rule of destroying the records and data entering an individual’s intimate and partly also private sphere does not need to apply only if the person concerned consents to their preservation, archiving and, where appropriate, disclosure or publication. A typical example is the aforementioned time capsule and its use in archiving census data in Australia and Ireland.

In the absence of such consent, archiving should be excluded altogether. The hypothetical use of irreversible anonymisation in order to permanently remove the link to a specific person could be considered partly in the private sphere. However, in the case of the intimate sphere, for security reasons and due to the risks of future misuse of data, potential de-anonymisation and reidentification of a person, anonymisation is not a sufficient tool to exercise the permanent absolute right to be forgotten and it is indeed necessary to proceed to the destruction of records containing data on a person’s intimate sphere as early as possible. The justification for this strict rule of destruction and the earliest possible destruction, is precisely the strongest layer of the right to be forgotten, which is permanent and does not fade with time, and absolute, meaning that no purpose whether private, official, judicial, any state interest, or any other “higher” interests will ever justify interference, violation, and breaking the barrier protecting this most sensitive and innermost area of the human being, this “core of personality protected by the inviolable dignity of man”, as the Federal Constitutional Court of West Germany called it at the turning point of the liberation of half of Europe from the despotic domination of the communist governments and the Soviet Union, just before the unification with the eastern liberated part of Germany.³⁸ We are faced, as the Court emphasised, with “the last inviolable sphere of private life-shaping, which is completely divested of public power. Even serious interests of the general public cannot justify interventions in this sphere.”

5.4 Conclusion: The Need for (Not)forgetting: Archival Deflation—Preservation—Archives and Records Destruction

In the last few decades, the right to be forgotten has been equated with the right to be remembered, the right to memory and, in some respects, even the duty to be remembered. But let us look at the whole situation from a slightly different perspective. It is not only archives and archiving that are caught between certain paradoxes: There are several parallel realities that can be documented in the field of preservation and archiving of public and private records:

• 1. An enormous, unprecedented, and apparently unsustainable amount of records and archival material is being created, preserved, and archived. The extreme and in the long term apparently unsustainable growth in the volume of archived records is supported by statistical data provided in Chap. 6.

• 2. Archives are littered with many records that do not have (or have ceased to have) the enduring and permanent historical or other value that would make them worthy of permanent archiving; such records should not be maintained.

• 3. Records are preserved that should not be preserved for the reasons of data protection, in particular for the protection of personality and privacy, and which—within the above categorisation of the right to be forgotten—fall into the category of permanent absolute right to be forgotten. Such materials include a number of broad categories of records that contain such sensitive personal data that should never be disclosed to anyone (even for later official consultation purposes), let alone made public. For this very reason, these records should be designated for destruction as part of the archival appraisal of records and shredding process. This could include, purely as an example, certain parts of court files, typically divorce records and records concerning other areas of civil litigations in which the sensitive privacy of individuals is dissected. Considering the example of divorce records, once a court dispute has been finally settled, not even a lineal descendant should have the right to consult such files. Any future official purposes of consultation are irrelevant, since the file should have been included in the shredding process only when the official need had passed, and, moreover, the key principle of democratic law “ne bis in idem” must apply in court cases, that is, that one cannot rule twice on the same matter.

  We can also mention those records whose creators wished for them not to be preserved. The above-mentioned example of Franz Kafka’s estate is quite illustrative and at the same time very controversial. In such case, another factor enters the decision-making process: Additional context and it needs to be considered whether the records have significant cultural, artistic, scientific, or intellectual value, for which they should be preserved despite the wishes of the creator, and so on. At the same time, it is necessary to precisely assess whether the records are of a public or private nature. In some cases, typically in the case of top political figures, the records status may be borderline between public and private.³⁹

• 4. On the other hand, it is often the case that the most important of records that should be archived, are destroyed. There is evidence that in some cases the most valuable records in terms of future professional research, but also of general social interest, are destroyed, a phenomenon referring in particular to the public scrutiny of the performance of politicians, officials, and public officials (it is not uncommon that records of many public administration agencies very often do not lose their administrative value even after the expiration of their retention periods).⁴⁰ Here, the archives should start to play a much more pronounced role as a control and supervisory body, actively seeking out intentional and unintentional losses of precisely those records that should have been preserved permanently or in the long term but which, for various reasons—including cases of illegal destruction—are not preserved. In this context, it seems appropriate to profile one of the roles of the archives in the direction and function that is nowadays by analogy performed in the field of financial and tax control by the tax administration and by the customs administration in the field of customs control.

The paradoxes analysed above shape not only the form of the work of archives and archivists, but are also characteristic of any work with information in public as well as private sphere.

A broader discussion should be initiated not only within the archival community, but also across scientific disciplines in an interdisciplinary sense and, of course, communicating with the public administration and record creators, on the issues raised concerning the provision of two parallel and difficult to reconcile rights to the free flow of information and access to it, as well as the protection of data, including personal data, the protection of personality and privacy, and the quantity and nature of records transferred to archives.

The right to know, the right to memory and, in some respects, also the duty of memory will always clash with the right to be forgotten, in which the protection of an individual’s private and intimate sphere occupies the largest space. The above model of the four categories of the right to be forgotten is one of the aids to navigating the eternal polarity and clash between the right to know and the right to be forgotten.

One of the messages of this chapter is that records management and archiving policies in the areas of data, personality, and privacy protection, and access to records and archives should take much more account of the right to be forgotten than has been the case to date. There is another resonating point, that an unprecedented and probably unsustainable number of records and archival material is being preserved and archived. At the same time, records are archived that should not be archived precisely for reasons of data protection, especially for reasons of personal rights and privacy. These topics will be elaborated in a comprehensive and more detailed manner in the following chapters. Finally, they will also present the possibility of how some of the data minimisation tools, such as anonymisation or pseudonymisation, can be linked to the model of the four categories of the right to be forgotten elaborated in this chapter.