Hiding in Plain Sight? The 'Right to Be Forgotten' and Search Engines in the Context of International Data Protection Frameworks

Forthcoming in Report of the 2017 Internet Governance Forum (IGF) Dynamic Coalition on Platform Responsibility

University of Cambridge Faculty of Law Research Paper No. 46/2017

14 Pages Posted: 30 Sep 2017 Last revised: 26 Oct 2017

See all articles by Krzysztof Garstka

Krzysztof Garstka

British Law Centre; University of Cambridge

David Erdos

University of Cambridge - Faculty of Law; Trinity Hall

Date Written: October 2017

Abstract

In the wake of the Google Spain (2014) and debate on the “right to be forgotten”, now included in the new General Data Protection Regulation (GDPR), it has become widely recognised that data protection law within the EU/EEA grants individuals a qualified right to have personal data relating to them deindexed from search engines. At the same time, however, this outcome has at times been conceptualised as a uniquely EU/EEA phenomena, perhaps even resulting from one idiosyncratic CJEU judgment. This paper questions such a conceptualisation. Through an analysis of five major extra-EU/EEA international data protection instruments, it argues that most of these could on a reasonable interpretation be read as supporting a Google Spain-like result. Further, and in light of the serious threats faced by individuals as a result of the public processing of data relating to them, it argues that the time is ripe for a broader process of international discussion and consensus-building on the “right to be forgotten”. Such an exercise should not be limited to generalised search engines (which undoubtedly raise some uniquely challenging interpretative conundrums within data protection), but should also encompass other actors including social networking sites, video-sharing platforms and rating websites.

Keywords: Data protection, privacy, freedom of expression, intermediaries, search engines, Google Spain, right to be forgotten, right to object, right to erasure, Council of Europe, OECD, APEC, ECOWAS, ASEAN, ICDPPC

Suggested Citation

Garstka, Krzysztof and Erdos, David, Hiding in Plain Sight? The 'Right to Be Forgotten' and Search Engines in the Context of International Data Protection Frameworks (October 2017). Forthcoming in Report of the 2017 Internet Governance Forum (IGF) Dynamic Coalition on Platform Responsibility; University of Cambridge Faculty of Law Research Paper No. 46/2017. Available at SSRN: https://ssrn.com/abstract=3043870 or http://dx.doi.org/10.2139/ssrn.3043870

University of Cambridge ( email )

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David Erdos

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

HOME PAGE: http://www.law.cam.ac.uk/people/academic/d-o-erdos/5972

Trinity Hall ( email )

University of Cambridge
Trinity Lane
Cambridge, CB2 1TJ
United Kingdom

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