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The "right to be forgotten": A tale of two Australian cases

Roger Atkinson

During my "IT youth" in the 1980s and 1990s (which were actually my forties and fifties years), we experienced an incredible array of advances in computing, in digital information storage, digital networking, and information retrieval [1]. Always becoming faster, cheaper, easier to use, more reliable, and more ingeniously applied in an ever widening range of human endeavour. However, there were some dark sides recognised in those earlier times, perhaps most notably the emergence of hacking, Internet distributed pornography, Internet scams, and 'spam' or junk email.

In more recent times, new facets of the dark side are emerging, perhaps most notably in piracy, whistle blowing (Wikileaks, etc.), adolescent sexting, cyber bullying, electronic spying, and quite recently, the "right to be forgotten". To help shorten a story that could otherwise be almost never-ending, I suggest that readers examine Wikipedia's quite extensive bibliography on the "right to be forgotten" [2]. Naturally, there is a very wide range of cases that could be explored, from many contexts, but the two I wish to centre upon are distinctly Australian and higher education in character, and are at opposite ends of a 'spectrum of perspectives'. Firstly, the "Spurr vs New Matilda" case, now rather spectacularly well-known [3, 4, 5], is at one end, though perhaps it will be more a case of a "desire to be forgotten" than a case of a "right to be forgotten". Secondly, the online publication of reports commissioned by the Australian Government's Evaluations and Investigations Program, circa 1987-2005, is at the other end, as a case of a "right not to be forgotten".

Although current commentary upon the "Spurr vs New Matilda" tends to emphasise privacy as the central theme [3, 5], the case does have links to the "right to be forgotten" which has its origins in individuals' desires to avoid "... being perpetually or periodically stigmatized as a consequence of a specific action performed in the past" [2]. Also, my reading of current commentary suggests that Professor Spurr will get no satisfaction from pursuing a "right to be forgotten", and therefore his "desire to be forgotten" (I presume that Professor Spurr does desire the episode to be forgotten, quickly) will have to be pursued via privacy laws and copyright laws. However, quick forgetting seems rather unlikely, once the search engines have got their 'bots' into the topic [6]. Paradoxically, taking legal action will be counter productive with respect to the "desire to be forgotten", because each action will create new stories, new links and therefore an increased search engine profile. Some of us are quite used to receiving junk email concerning 'SEO', i.e. search engine optimisation, but attempting 'SEDO', i.e. search engine de-optimisation, that's a novel perspective!

From an educator's perspective, the "Spurr vs New Matilda" case is a reminder that sometimes the message is forgotten. During the 1990s, in the context of managing and promoting emailing lists for academic purposes, I tried to spread the message, "Remember, you are speaking in public ...", and surely that or similar cautions were very widely accepted back in those days. Is this kind of advice particularly susceptible to a "risk of being forgotten"? Is there room for a new cyber term, styled after cyber security and cyber bullying, such as cyber temperance?

Unlike the case of "Spurr vs New Matilda", the case of large gaps in the online publication of reports commissioned by the Australian Government's Evaluations and Investigations Program, circa 1987-2005, has received no publicity at all, though the series is of considerable interest to HERDSA members. The 'EIP' arose in my mind as a "case" for three main reasons. Firstly, my recall of occasional frustrations encountered over many years of copy editing jobs, when looking for URLs to append to citations of EIP publications. URLs that once were there becoming dead links, and URLs that should have appeared through retrospective mounting of online versions, not appearing. Secondly, the EIP spanned a good number of years, from 'before-WWW, print only' to 'WWW era, everything online', so the history of its publishing could be illustrative for that transitional period. Thirdly, very recently, a blog commentary by Kent Anderson [7] was just too provocative:

The recent court ruling in Europe establishing a "right to be forgotten" brings up interesting issues for scholarly and scientific publishers, who have spent the better part of the last decade bringing vast archives of old research reports online. ...
... our archives ... are, at best, mixed bags ...
... recurring problems with a widened funnel of journals publishing papers of dubious quality. Over the last decade, we've also widened the funnel at the base, by adding huge archives. [7]
Certainly Anderson was provocative from my perspective, owing to my own work in retrospective mounting of archives for AJET, ASET, Teaching and Learning Forum, IIER and sundry others [8]. Not "vast archives" [9], but valuable archives, and especially important to the authors involved. These days, your contribution to academic research dies if it is not online. As to the issues raised by Anderson [7], most commentators were critical, for example:
Kent surely you do not mean to say that a publisher / aggregator should take it upon themselves to edit the corpus of historical scientific content and pick and choose what to delete? You can imagine the uproar this would generate. It seems to me that there is already a process for ensuring that invalid arguments and poor research are not given credence, and that is the process of peer reviewed argument and counter argument, citations and academic dialogue. [Hughes, in 7]
Hence the notion of "right not to be forgotten". To explore the case of EIP, I conducted Google searches to locate online, open access copies of reports commissioned under this series. The main complicating factor is that during the period of interest, circa 1987-2005, the Department that commissioned and hosted the EIP publications was subjected to numerous renaming and restructuring exercises. During that period and subsequent years the name sequence was (according to my recollections and some searches):
Not surprisingly, all original URLs (i.e. URL for first online publication) for the EIP, that were mostly in the DETYA era, have become dead links. Quite possibly, the EIP report files are still there on departmental disks, but forgotten and lost, and hidden from search engine 'bots' by a 'no index' tag, <meta name="robots" content="noindex">.

Fortunately, the NLA (National Library of Australia) through its Pandora archive has preserved online, open access copies of 1996-2005 reports [10]. Table 1 summarises my findings from checking a 10-year period, selected to represent the transition between 'before-WWW, print only' and 'WWW era, everything online'.

Table 1: Online availability of EIP reports, 1990-1999

No. of EIP reports listed7651919922222011
No. with live full text links11022116212010

The world wide web seems to have dawned at DETYA at about the end of Q1, 1996. Thereafter, we seem to have the usual pattern, namely 'everything online' (though only with the NLA's timely intervention). It is pre-1996 where a "right not to be forgotten" is applicable - or questionable, if one accepts Anderson's [7] critical view "about bringing vast archives of old research reports online". From my searches to date, I could not determine the number of EIP reports published pre-1996, but it is not "vast". Placing the EIP archives online would be a trivial task, compared with the vast amount of journal archives placed online during the last decade by Taylor & Francis, Elsevier, Springer, Wiley, SAGE and other major publishers [9]. Then there's the Royal Society's journals, which announced recently:

To celebrate Open Access Week, all Royal Society content - from 1665 to current - is free to access until Sunday 26 October [11]
From 1665!! Show offs - but the offer has expired. However, the proposition that all of the EIP archives be placed online faces a bar that the Royal Society did not. Namely, who will do the work? Copyright? Perhaps the questions could be reframed, into 'Who has the greatest interest in expressing a "right not to be forgotten" with respect to EIP reports', apart from their authors (some, alas, now dead)? It could be the universities that employed the authors during their researching and writing EIP reports. Many universities now have institutional repositories for their researchers' work, willing and able (or even quite anxious) to enlarge their holdings. For that reason, individual universities may be able to prioritise online archive building for EIP reports somewhat higher than the NLA can. But, from the perspectives of individual university libraries, there is a bar constituted by statements of this form, that appear in all EIP reports:
© Commonwealth of Australia 1997
This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Australian Government Publishing Service.
Hopefully it is not really a bar, more like an irritation. Someone has to write to the AGPS's successor, or current successor, whoever that may be, to seek a permission. But could the tedium of that step be avoided, if the Australian Government's Minister for Education could be persuaded to declare an appropriate Creative Commons Licence for all EIP reports (plus many other commissioned publications)? Yes, but, alternatively, a tactic that appeals to me and perhaps to others: let's have some acts of academic/civil disobedience. Lighten up life in contemporary higher education! Just put some non-archived EIP reports online, maybe something like Moses and Trigwell (1993) [12], then, in a courteous manner, advise our Government about the action (no need to be over-provocative by shouting, "Your copyright is uncapped! Sue us if you can/dare!").


  1. Atkinson, R. (2004). Technology interactions: Scholarly publishing. HERDSA News, 26(3), 19-21.

  2. Wikipedia (2014). Right to be forgotten. Wikipedia [viewed 24 Oct 2014]

  3. Arnold, B. B. (2014). Spurr vs New Matilda case pits privacy against public interest. The Conversation, 23 October.

  4. Badami, S. (2014). Barry Spurr and me: Did he look at me and see human garbage, too? The Guardian, 20 October.

  5. Rivette, M. J. (2014). Spurr vs New Matilda: The battleground over privacy. The Drum, ABC News, 22 October.

  6. Test this proposition by searching for "barry spurr" at,, and

  7. Anderson, K. (2014). Surprise, surprise - the web turns out to be too persistent. The Scholarly Kitchen, 30 September.

  8. AJET 1985-1996; IJET 1996-2002; e-JIST 1996-2002 (; IIER 1991-1999; QJER 1985-2003 (; TL Forum 1995-2004 (

  9. For examples of "the last decade bringing vast archives of old research reports online" see AJET Editorials 25(1) and 22(4), and

  10. The main entry point into the NLA's online collection of EIP reports is; for pre-1996 see

  11. The Royal Society (2014). Royal Society Publishing - Journals. [viewed 26 October].

  12. Moses, I. & Trigwell. K. (1993). Teaching quality and quality of learning in professional courses. Evaluations and Investigations Program, Department of Employment, Education and Training. Canberra: AGPS. URL: TBA.

Author: Roger Atkinson retired from Murdoch University in June 2001. His current activities include honorary work on the TL Forum conference series, Issues in Educational Research, and other academic conference support and publishing activities. In mid-2012 he retired from a 17 year association with the publishing of AJET. Website (including this article in html format):

Please cite as: Atkinson, R. J. (2014). The "right to be forgotten": A tale of two Australian cases. HERDSA News, 36(3).

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