Recognizing Rights in Real Time: The Role of Google in the EU Right to Be Forgotten
60 Pages Posted: 29 Jul 2015 Last revised: 27 Aug 2015
Date Written: July 28, 2015
This Article analyzes the prominent role Google is playing in the development of the right to be forgotten (RTBF) in the European Union. The Article conceptualizes Google’s role as a private administrative agency with quasi-lawmaking, quasi-adjudicative, and quasi-enforcement powers. My theory builds on several bodies of scholarship, including writings related to mixed administration in the United States, co-regulation in Europe, and global administrative law, as well as Weber’s theory of bureaucracy and Coase’s theory of the firm. The central insight of my theory of the private administrative agency is that corporations like Google may operate in a quasi-governmental, regulatory capacity in administering public rights on a global scale.
While Google’s role raises concerns of democratic accountability, it also brings significant advantages in resources, efficiency, analytics, and flexibility that a public agency would not possess. In order to preserve these advantages, the Article proposes to keep intact much of Google’s independent decision making in processing RTBF claims. But the Article calls for the creation of a hybrid agency (consisting of industry, government, and democratically elected representatives) to provide greater oversight to the entire process in the EU. The agency will create a standard webform for people to make RTBF requests with all search engines and will institute an administrative appellate body to resolve conflicts among the search engines over the same RTBF claim. The proposed oversight agency represents a form of public-private partnership and global governance, designed to increase democratic accountability and transparency in Google’s implementation of the right to be forgotten.
Keywords: privacy, free speech, right to be forgotten, EU law, Google, Costeja, data privacy, administrative law, global governance, Weber, Coase
JEL Classification: K23
Suggested Citation: Suggested Citation