Reconceptualizing the Right to Be Forgotten to Enable Transatlantic Data Flow
71 Pages Posted: 8 Jul 2015
Date Written: July 6, 2015
This Article examines the implications of the Google Spain case as well as the full-blown impact of the proposed GDPR that is estimated to go into effect in the European Union in 2017. The central problem with the right to be forgotten as conceptualized by the CJEU and the Commission is that the expansiveness of the right threatens to cannibalize free expression. Thus, this Article calls for a shrinking of the right to be forgotten to appropriately balance the right of data subjects to control personal information about themselves with free expression and the public interest in preserving history. We propose that the EU Commission operationalize free expression by narrowing the right to be forgotten for private persons, public officials, and public figures. Private persons will have the right to delete links to their own postings and repostings by third parties. They will have a right to delete links to postings created by third parties upon proof that the information serves no legitimate purpose other than to embarrass or extort payment from the data subject. Public officials and public figures will have a right to remove links to their own postings and repostings by third parties, but not postings about them by third parties, unless the third party was acting with actual malice and the posting does not implicate the public's right to know. In addition, all right to be forgotten requests will be subject to a general exemption for the public's right to know.
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