Hammering Square Pegs into Round Holes: The Geographical Scope of Application of the EU Right to Be Delisted
53 Pages Posted: 18 Sep 2016
Date Written: September 15, 2016
On May 13, 2014, the European Court of Justice decided, in the case of Google Spain, that search engines are bound to remove, upon request, results pointing to websites holding “inadequate, irrelevant, or excessive” information about European citizens, thus granting the latter a so-called ‘Right to be Forgotten,’ or more precisely a ‘Right to be Delisted.’ In the case at hand, it was found that European principles of data protection applied to Google’s search engine business through the presence of Google Spain, a locally-focused advertising management office established in Madrid. Left unexplored, however, was the question of whether other foreign search engines that have fewer contacts with the legal order of the European Union, such as Duck Duck Go, also fall under its scope.
With this interrogation over the extraterritorial application of EU data protection law as a starting point, the paper confronts, through the use of a private international law inspired methodology, the scope rules of Directive 95/46/EC on data protection against hypothetical cases involving search result delisting requests. Through the results so obtained, it highlights that, due to a rift between the individual, personality focused nature of the Right to be Delisted and the processing, data controller oriented nature of the scope rules of the Directive, answering these questions remains a convoluted and inconsistent process akin to hammering square pegs into round holes. It concludes by proposing solutions, both de lege lata and de lege ferenda, which may inspire further developments.
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