Finally, Chapter 5 presents an analysis of the right to digital forgetting, as opposed to the right to remember represented by digital archiving at a primary level. Nevertheless, the right to be forgotten is presented as one of the principles of archiving, while reconciling it with other rights related to the protection of privacy and personal data. Two challenges are put forward in this context: the first is technical using methods and technical processes of effectiveness; the second is legal, using different legal arsenals to enforce this right. Examples of public and private archives in relation to the right to be forgotten, as well as the efforts made by the American firm Google in this direction, will also be presented.
1 1 Theory developed by the French archivist and historian Yves Pérotin in 1961. This model gained legal recognition in France with the adoption of the law of January 3, 1979 on archives.
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Digital Archives: Elements of Definition
1.1. Key concepts of digital archives
Before talking about digital archives, it is appropriate to present in the foreword some elements of definition relating to key concepts related to archiving in general, namely, archives, archival tools and procedures for sorting, transfer and disposal, among other things.
1.1.1. Archives
It has now been more than 70 years since the International Council on Archives (ICA), representing archival professionals from around the world, was founded, and efforts are being made to develop and implement both a body of global archival legislation and archival training and research programs. Among the first formal definitions, we cite that of ICA:
Archives are the documentary by-product of human activity retained for their long-term value. They are contemporary records created by individuals and organizations, as they go about their business and therefore provide a direct window on past events. They can come in a wide range of formats including written, photographic, moving image, sound, digital and analogue. Archives are held by public and private organizations and individuals around the world. [ICA 16]
Today, the majority of countries have legal texts defining and organizing archives as “[...] documents, whatever their date, form and material support, produced or received by any natural or legal person, and by any public or private organization, in the exercise of their activity”1.
Archives can therefore be public, coming from the activities of the State, public institutions (industrial and commercial [EPIC] or administrative [EPA]) and any other legal entity under public law or legal persons under private law managing a public service (financed by a public fund for a general interest).
They can also be private, coming from natural persons or persons with a private status such as families, unions, political parties and associations.
1.1.2. Archive management
Records management today is the basis for all actions related to good governance, respect for the law and the collective memory of humanity, the rights of citizens to access information and administrative transparency [ICA 16].
Indeed, in all public or private organizations, information recorded on various media is created and/or received “involuntarily” in the course of people’s activities. Over time, this information accumulates and increasingly hinders work, requiring intervention. What should be retained? Why keep archives? What is their purpose? For how long? These are in addition to many other questions related to the value of these documents, distribution, access rights and places of conservation, among other things.
1.1.2.1. Conservation objects
A priori all administrative documents are concerned by the conservation for different periods according to their nature and their value, which could be administrative, legal or historical. A specific retention period is therefore assigned to each document.
1.1.2.2. Conservation objectives and utility
We are obliged to preserve archives primarily for their administrative or legal value. Indeed, archives are an integral part of an organization’s information system and represent the backbone of its proper functioning on the administrative, and also financial and legal levels. They may also have historical value as witnesses to the past. François Mitterrand (President of France from 1981 to 1995) summed up the answer to these questions about the values of archives in the following terms: “Archives in all countries, by keeping track of yesterday’s acts and their paths, illuminate but also command the present. Those who act responsibly are well aware that one does not set directions in ignorance of the past” [MIT 88]. We also keep archives for the good governance of organizations, saving space, time and money.
In other words, archives are evidential documents that allow the continuity of administrative services, historical research and economic, social and cultural development.
1.1.2.3. Shelf life
As noted above, each document is assigned a retention period. This retention period represents the continuous process that a document must go through from its creation to its final disposition, which may be destruction or deposit in an archive for its historical value. Each retention period varies according to the informational, administrative or legal value of the document. Archives are therefore successively called “current”, “intermediate” and then “permanent”, which is known as the lifecycle of archives or the theory of three ages [PER 61]:
– Current or active archives represent documents that are regularly used in day-to-day work and are generally used to manage ongoing business. They are kept in offices close to the users;
– Intermediate or semi-active archives represent documents that no longer have an immediate and daily use, but which must be saved because of a possible reopening or legal prescriptions. Since the frequency of use is low, these archives can be moved to another location for consultation if necessary or entrusted to an archive service that manages access to them on demand;
– Permanent or historical archives are those archives that are no longer useful for the conduct of administrative activity and which are of historical or patrimonial interest. These archives must be kept for an unlimited period of time. It should be remembered that a very large number of archives that are not intended to enter the active age must be disposed of after agreement from the archive service.
1.1.2.4. How to keep archives
Preserving archives also depends on the location, nature and value of the documents. It is a matter of keeping a trace of all documents at every stage of their lives. Three principles are to be respected in this sense:
– the provenance of the collection, which consists of not mixing documents;
– the order of the collection, which consists of keeping the documents according to the classification made by the original organization;
–