668 V O L . 7 5 P A R T 5 S E P T E M B E R 2 0 1 7 THE ADVOCATE
Maylee is. Furthermore, it is also likely that the admissions officer would
encounter pieces of information that no longer represent Maylee’s views,
affinities or disposition. She may nonetheless pull these outdated
appendages out of Maylee’s bucket and add these to her conception of
This “reassemblage error” has significant ramifications for Maylee. At
any time, an Internet user can find inadequate, inaccurate, irrelevant or excessive
information about Maylee online and then craft a warped and incorrect
conception of her identity. Her social circle, musical preferences and hair
colour have changed drastically since the time her parents posted photos
and anecdotes about her as a baby. She had forgotten about “liking” the
homophobic joke on Facebook and re-tweeting the satanic lyrics. She never
knew that someone recorded her laughing in shock at hooligans during the
In a world without the Internet and social media, human forgetfulness or
inattention would allow Maylee to make mistakes as a child. The virtual
realm does not give her the benefit of the doubt.
But that is not all.
The implications of this lack of forgetfulness reach far beyond subsequent
prejudgment. With the Internet’s perfect memory, an unwelcome
and unexpected consequence may be an adverse impact on one’s fundamental
and constitutionally protected freedoms.
WAIT, HOW COULD A PERFECT MEMORY IMPACT FUNDAMENTAL
Many commentators, including me, have questioned the adoption of a right
to be forgotten from a practical standpoint.34 However, such concerns pale
in comparison to another line of argument against the adoption of the right
to be forgotten: that it competes directly with constitutional freedoms.
These critiques generally focus on the right to free speech held by third parties
who speak about the person wishing to be forgotten, as well as on the
right of the public to access information.
In some respects, however, is it a fallacy to see the right to be forgotten
and free speech as polar ends of a spectrum of rights that must be balanced.
If we dissect the meaning of and values underlying free expression,
we see that the process of forgetting may not be solely antagonistic to free
expression. Rather, the right to be forgotten may actually advance the very
purposes for which North American constitutional doctrines protect
speech and expression: (1) advancing knowledge and “truth” in the
marketplace of ideas;35 (2) facilitating representative democracy and self-