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Can empathy be codified?

Natalie McEvoy

Empathy is the key to breaking the cycle of shame that stems from public ridicule or criticism, allowing people to move on from their past. But can they truly move on if the internet never forgets?

I suspect that we have all, at some point, revisited and edited a social media post lest it be misunderstood - or have deleted it entirely. Before social media, the written word was the considered, supportable relation of the spoken opinion, but social media makes our commentary immediate and – we are only human – occasionally flawed. Those with public profiles or who are conscious of the enduring legacy of an online presence, are already on high alert to speak carefully.

In Jon Ronson’s book “So You’ve Been Publicly Shamed”, amongst many other interviews, he meets with psychiatrist James Gilligan, and explores his extensive study of prisoner behaviour and possible rehabilitation. Gilligan strikingly concludes that shame is behind the violence exhibited in the prison, explaining “I have yet to see a serious act of violence that was not provoked by the experience of feeling shamed or humiliated, disrespected or ridiculed.” Shame carried by these individuals leads only to violence; whether toward themselves or others, and seems to have no redemptive powers.

So why is social media overcrowded with users keen to shame others for their opinions? What possible positive outcome could users expect this have? A helpful mobilisation of the crowd might be the majority turning against a racist, misogynist or hate-based opinion such that it gives the original author pause for thought, and in some instances an education. Social media can be a powerful force for good and an important check and balance on corporate and elite power. Any other reaction, which seeks to denigrate someone for their poor taste or bad judgment – is capable of triggering such a powerful chain reaction as to threaten life or livelihood.

If – as Gilligan and Ronson suggest – empathy is the antidote to shame, why are we largely bypassing empathy when we communicate by keyboard? Is it easier to just emphatically add our voice behind the righteous party lest we also be judged, even though our judgment was not invited?

The law recognises the role of empathy in law and order. We know that a lack of remorse may lead to a higher sentence, and we know that victim impact statements are considered an important trigger in the defendant’s rehabilitative process as well as bringing the crime off the page for the judge and rehumanising the victim.

Could an apology for a misjudged online comment pave the way in the same vein that remorse assists in criminal mitigation?

A European Court ruling in the Google Spain case in 2018 established that a search engine had to consider requests to remove listings against an individual’s name which are inadequate, irrelevant or excessive in view of the time that has elapsed. This came to be known as the “right to be forgotten”. In practice, however, this ruling has offered protection to limited individuals in limited circumstances, with the onus squarely on the applicant to present their qualifying reasons and to allow a certain time period for the content to be removed. Search engines have only had the resources to deal with reported links as best they can, as opposed to jumping on board with both feet in the spirit of the legislation.

It is challenging to rationalise an environment of legislation that seems to show more empathy in relation to spent convictions than it shows victims of crime, the family of victims, those exonerated or those caught up in the aftermath of a crime. You could serve a four year prison sentence and the passage of time would allow for that crime to be spent, ringfencing manifold protections designed to allow the individual to move on with their life both professionally and privately. Yet those who expose sexual harassment, who “out” bullies in the workplace or who have escaped and testified against cult leaders find that they have these elements of their past linked to them in the long term.

A social faux pas, viral joke, unpopular opinion or disastrous photograph which fills the pages and pages of Google search results may cost a job or a marriage and gravely threaten the individual’s mental health. A private individual may have to actively pay to flood the web with positive content connected with their name, instead of having any right in law, after a period, to move on from their past.

When we speak of a right to rehabilitation, we know that we seek to codify the intangible. That sense that civilised society deems that person deserving of the right to move on, to distance themselves from a prior event, to be judged on the content of their recent actions as opposed to much older missteps.

Creating a right to rehabilitation would seek to rebalance the right to be forgotten, considering on the facts the appropriate weighting of the right to freedom of expression and the right to a private life. The right would accord proper legal recourse to a larger class of deserving citizens - to include victims of crime and family members – and to empathise with those we would have certainly forgotten but for the internet (who have, for example, made mistakes less severe than would attract a four year prison sentence). It would allow greater specificity around when something ceases to be publishable, by setting parameters and timeframes instead of the present test as to whether processing is still relevant. Individuals crave certainty; it enables them to plan for, navigate and survive crisis.

As media litigators, we find ourselves time and again in circular correspondence with social media giants, trying to remove content which is actively damaging our clients in one or many respects, but where the presumption is often in favour of the creator. It is important for social democracy that the presumption does not shift entirely in the other direction but a more equitable balance must be struck.

Aside from a number of polar instances where something is squarely without its Terms of Use, such as for example in relation to copyright or data protection, it can be frustratingly complicated to remove defamatory or private content quickly. A quick takedown is worth everything to a victim; the longer damaging content is available, the more shared and spread it becomes and the chance to nip it in the bud evaporates.

A right to rehabilitation which provides structure around accessible content and which challenges the presumption that everything written shall remain in perpetuity would be controversial to some, but even the British Library has had to accept that it cannot retain a copy of every book ever published. An individual is worth more than the sum of his or her past publications.

We will be discussing shame, empathy and the possibility of a right to rehabilitation with Jon Ronson at our next event on 10 November. To join us for this online conversation, register free here.