The Right to Be Forgotten: Memory Holes as the Default?

Abstract

The right to be forgotten has become a hotly debated topic on both sides of the Atlantic. Some see it as a threat to free speech, while others question whether it is a right to erasure or another version of the French droit à l' oubli. Many scholars relate it to subject’s control over her data and some see it as a right to identity. Unable to figure out whether it is about forgetting or being forgotten, some authors have even accused the European legislator of “foggy thinking”. Given our modern digital lives, during which everything can be posted online, one could argue that exercising such a right would be problematic. This paper balances the right to be forgotten with the fundamental right to freedom of expression and freedom to conduct a business. Furthermore, it examines controversies between the European right to erasure and the First Amendment theoretical framework. However, it observes that certain versions of the right to erasure do exist in US laws. In addition, it provides some statistics with regard to requests addressed by individuals after the famous Google decision. Finally, it studies arguments for and against the right to erasure to draw attention to the need for re-shaping the concept of privacy in today’s information societies.

Keywords: right to erasure, right to be forgotten, freedom of expression, data protection, privacy