Tracing the Right to be Forgotten in the Short History of Data Protection Law: The 'New Clothes' of an Old Right
21 Pages Posted: 29 Sep 2014
Date Written: October 2013
When the European Commission (EC) published its draft Data Protection Regulation (DPR) in early 2012, a swirl of concern hit data controllers regarding the introduction of a sophisticated “right to be forgotten” in the proposal for the future DPR, which was considered to unprecedentedly impact the internet and its economics. Critics and advocates of the right to be forgotten engaged in consistent theoretical debates, doubled by the technical discourse about its (un)feasibility. This paper “deconstructs” the right to be forgotten into the individual prerogatives which are in fact granted to persons. It shows that those prerogatives already exist to an extended degree in EU law, and have existed in the first data protection laws enforced in Europe. In addition, the controversial obligation to inform third parties about the erasure request is a “duty of best efforts” which pertains to controllers and which is significantly different than a duty to achieve a result. Recourse will be made to private law theory to underline this difference.
Keywords: the right to be forgotten, data protection, privacy, duty of best efforts
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