Sunday, January 2, 2011

The Right to be Forgotten Exists In Some Cases...Like This One.


In these blogs I have often presented the perils that we face if we unthinkingly post pictures, opinions or tweets about activities or events we have engaged in or have experienced. The takeaway has always been that the users must analyze every possible aspect of what his or her post will or may be construed as, not only now, but five years from now when, for example, the adolescent is applying for that position at a respected organization, scholarship at some Ivy League school, or even a prospect for a first date.

Most people rightly have no sympathy for smart individuals who should otherwise know better, and who cannot self-censor. At this stage in the evolution of social media, we all know how data persists forever, and what you post or say online should be something that you should be prepared to live with, or defend, forever. (You do understand this, right?)

But what about those that can't defend themselves? 

You may have missed this recent story but it is a frightening example of how, though no fault of their own, two children, 4-and-5 years old, will forever be affected by the ubiquity and persistence of information in the public domain.

Here's the story: an 87 year old woman with a walker was knocked down by accident on a street in New York City by one or both of the two children, 4-and-5-years old ,who were riding their bicycles. The woman had to be taken to the hospital. She subsequently died 3 months later of unrelated causes. The old woman's estate sued the parents of the children claiming negligence: they should have been supervised better, the suit asserts.

A judge in NY state ruled that the kids could be sued in a civil injury context and the names of the children were then made part of the public record, as is customary. Ultimately, the New York Times reported on the case due to its extraordinary nature, and the kid's names have now become more widely distributed. A common practice in the world of public law has now uniquely, and probably permanently identified these children in a less than positive light for the rest of their lives. 

Though the parallels between a post on Facebook, LinkedIn, Twitter or MySpace, and the publication of the two children's names may seem unrelated and dissimilar, they have one component in common: the perpetuity of the information. The issue is not that the legal process required the publication of the defendants names in a public record; that procedure has been common practice for hundreds of years. The issue is more the fact that the memory of online databases and search engines is or will be assumed to be infinite.

Ten years from now when the classmates of these two children do Google searches on all their friends, what do you think the top search result will be? How do think teenagers in high school will likely interpret and process that data? (Johnny killed some old lady when he was 5?!!). I doubt that Johnny will see that past experience as a possible résumé enhancer. 

It is inevitable and to be expected that a future Human Resource manager will do a Facebook or Google troll on you to see why they might not want to hire you. What do you think the impact will be on the job prospects of these two kids when this case comes up on the search? These two children may always be haunted by the persistence of memory and will not have the privilege or the right to be forgotten.

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