Where Now for the Right to Be Forgotten?: A Review of the Issues in Post-Google Spain With Particular Regard to the Decision Reached in the UK

Where Now for the Right to Be Forgotten?: A Review of the Issues in Post-Google Spain With Particular Regard to the Decision Reached in the UK

Evelyn (Patsy) Kirkwood (University of Reading, UK)
DOI: 10.4018/978-1-5225-9489-5.ch016

Abstract

Increased recognition of the pervasiveness of information collected and accessed has led to concern as to its impact on privacy. The ability to impact people's lives with the easy availability of information that in other eras would have remained hidden or “forgotten” is highlighted by the use of the internet for instant recall. Such information, which organizations often hold for commercial benefit, is increasingly made available through search results or from online archives. This chapter will focus on the impact of the Google Spain case, which was believed to have created a new right to be forgotten, leading to the finalization of Article 17 of the General Data Protection Regulation. The author will then examine more recent cases where the new right has been applied and their impact on defining its scope. In particular, the author will focus on the UK joined cases of NT1 and NT2.
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Background

A right to be forgotten has always existed in one form or another within Europe, for example in the French droit d’oubli. Here, the French Data Processing, Data Files and Individual Liberties Act of 6 January 1978, Law No. 78-17, specifically established that individuals are entitled to access, alter, correct or delete personal information in recognition of this old right. However, modern claims for the right could be said to be the result of privacy campaigners’ mounting pressure. This was largely due to the recognition of the pervasiveness of information collected and accessed through the Internet. Such information is now not only held by organizations, often for pure commercial benefit, but increasingly made available through instant access or online archives largely due to the output of search engines. The particular nature of the Internet and specifically the availability of links to information through search engine activities has created a digital memory which conflicts with the human ability to allow memories to fade over time.

Key Terms in this Chapter

Directive: A “directive” is a legislative act that sets out a goal that all EU countries must achieve. However, it is up to the individual countries to devise their own laws on how to reach these goals.

CJEU: The Court of Justice of the European Union interprets EU law to make sure it is applied in the same way in all EU countries, and settles legal disputes between national governments and EU institutions.

Advocate General: Appointed for a period of 6 years to work with the CJEU. The most important work performed by the Advocates General is to deliver a written Opinion, named “reasoned submission”. The role of the Advocate General is to propose an independent legal solution on cases referred to the court. It is important to note that the Court is not compelled to follow an opinion delivered by the Advocate General.

EU: The European Union is an economic and political union between 27 EU countries that together cover much of the continent of Europe. The EU is governed by the principle of representative democracy, with citizens directly represented at Union level in the European Parliament and Member States represented in the European Council and the Council of the EU.

Regulation: A “regulation” is a binding legislative act by the EU. It must be applied in its entirety across the EU. For example, when the EU wanted to make sure that there are common safeguards on goods imported from outside the EU, the Council adopted a regulation.

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