Dueling, Google, and the ‘Right to Be Forgotten’By
Europeans apparently value personal honor more than Americans. And it may have something to do with the history of dueling.
On Tuesday, Europe’s highest court ruled that Google, upon request, must remove links between a person’s name and third-party information, if that information is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes of the processing at issue.” The decision grants legal backing to what has become known as the “right to be forgotten.”
According to the Wall Street Journal (subscription required), this right was “born out of 19th century French and German legal protections that once permitted honor-based dueling—but remains unfamiliar to most Americans.”
So what does dueling have to do with people’s right to control their online image? It all goes back to defending your honor, says James Whitman, a professor at Yale Law School. “It used to be, you would challenge people to a duel if they revealed embarrassing facts about you,” he says. “Your right of privacy in [today’s] Europe is connected to the right to protect your personal honor. … If you’ve been insulted or your honor has been called into question somehow, something has to be done.”
Formalized dueling regulations date back to the sixth century, when King Gundebald of Burgundy proclaimed that “irreconcilable differences could be settled through trial by combat,” Arthur Krystal writes in his New Yorker piece “En Garde! The history of dueling.” During the Italian Renaissance, he says, “Dozens of dueling codes, fencing manuals, and treatises on courtesy … materialized, prescribing the dress, manners, and rules of combat appropriate to the courtier.”
In Europe—and even in America—dueling was an upper-class affair. Although not explicitly legal, it was tolerated. In the 19th century, governments began actively discouraging the duel. In Queen Victoria’s England, for example, it was ruled that any officer involved in a duel would be thrown out of the army and that the widows of officers killed in duels would not receive a pension.
Governments have also created laws to encourage citizens to settle disputes in court. “They introduced a new kind of law called the law of insult—it still exists in Europe,” says Whitman. “There’s no requirement that the insult be false. If you’ve been insulted, it’s a criminal offense.” In Germany, he explains, “if somebody gives you the middle finger in traffic, they could be criminally prosecuted. … It’s an automatic $300 fine.” Italy has a similar law, but it rarely comes into play. In France it’s a criminal offense to disrespect government officials and policemen. “In the U.S. it would be really stupid to go up to a policeman and say, ‘You jerk,’” says Whitman. “But it’s perfectly legal.”
In Europe, these anti-insult laws likely helped create the “right to be forgotten”—which in French is le droit à l’oubli and in Germany is known as das recht auf vergessenwerden.
Of course, dueling has a long history in the U.S. as well, especially among politicians and the elite (though it’s always been illegal). Even Abraham Lincoln once came close to engaging in a sword fight. Still, honor-based culture has always been weaker on this side of the pond. “It vanished very quickly in the North,” says Whitman. (In the South, he notes, honor culture remains stronger, which may have something to do with higher homicide rights and such things as “stand your ground” laws.)
“What happens in America is, free speech always wins,” Whitman says. “In Europe, free-speech rights always have to be balanced against the rights to personal honor.”