The Right to Be Forgotten

65 Pages Posted: 11 May 2017  

Michael J. Kelly

Creighton University School of Law; American Society of International Law

David Satola

World Bank ICT Division

Date Written: May 9, 2017

Abstract

The right to be forgotten refers to the ability of individuals to erase, limit, delink, delete or correct personal information on the Internet that is misleading, embarrassing, irrelevant or anachronistic. This legal right was cast into the spotlight by the European Court of Justice decision in the Google Spain case, confirming it as a matter of EU law. This “right,” however, has existed in many forms around the world, usually applying a balance-of-rights analysis between the right to privacy and the right to freedom of expression. The new European version, though, is based on a legal theory of intermediary liability where Internet search engines are now considered “data controllers,” and as such have liability for managing some content online. As it has evolved in Europe, this right has focused attention on key underlying policy considerations, as well as practical difficulties, in implementation under the new European regime. In particular, shifting the burden of creating compliance regimes and supervising important human rights from government to the private sector. Thus, in Europe, the function of balancing rights (privacy versus speech) in the digital context has been “outsourced” to the private sector. Recent experience in Europe under this regime shows that there is no uniform approach across countries. Moreover, different national approaches to the “right” make it almost impossible for multinational entities to comply across jurisdictions. Apart from the data controller threshold, civil-law jurisdictions seem to give greater weight to privacy concerns in striking this balance. Common-law jurisdictions tend to give greater weight to expression. The right to be forgotten is another example of an evolving transatlantic data struggle with potentially serious trade implications. This Article explores the historical and theoretical foundations of the right to be forgotten and assesses practical legal issues including whether North American “free speech” rights are an effective buffer to what is sometimes a very controversial and evolving issue.

Keywords: Internet, European Union, European Court of Justice, Censorship, Free Speech, Privacy, Spain, Google, House of Commons, Computer

JEL Classification: K20, K23, K29, K33, L86

Suggested Citation

Kelly, Michael J. and Satola, David, The Right to Be Forgotten (May 9, 2017). University of Illinois Law Review, Vol. 1, 2017. Available at SSRN: https://ssrn.com/abstract=2965685

Michael J. Kelly (Contact Author)

Creighton University School of Law ( email )

2500 California Plaza
Omaha, NE 68178
United States
402-280-3455 (Phone)
402-280-2244 (Fax)

HOME PAGE: http://www.creighton.edu/law/faculty/kelly/index.php

American Society of International Law

2223 Massachusetts Avenue, NW
Washington, DC 20008
United States
202-939-6000 (Phone)

HOME PAGE: http://www.asil.org/

David Satola

World Bank ICT Division ( email )

Strategy Unit
2121 Pennsylvania Avenue NW
Washington, DC 20433
United States
202-458-0015 (Phone)

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