Right to be Forgotten: EU-ropean Data Imperialism, National Privilege, or Universal Human Right?

Abstract

The Digital Age has fundamentally reshaped the preconditions for privacy and freedom of expression. This transpires in the debate about a “right to be forgotten”. While the 2014 decision of the European Court of Justice in “Google Spain” touches upon the underlying issue of how increasing amounts of personal data affects individuals over time, the topic has also become one of the salient problems of Internet Governance. On 24th September 2019 the European Court of Justice delivered its judgment in “Google vs CNIL” (C-507/17) which was supposed to clarify the territorial scope of the right. However, this judgment has raised doubts about the enforceability of the General Data Protection Regulation, and reveals the complex, multi-layered governance structure of the European Union. Acknowledging such complexity at a substantive and institutional level, this article starts by analysing the judgment. Additionally, to better understand the current situation in the European Union and its member states, recently produced draft guidelines by the European Data Protection Board are presented and discussed, as well as two judgments of the German Federal Constitutional Court. Subsequently, the European developments are put in international context. Finally, the insights from these sections are combined which allows to develop several conceptual ideas. In conclusion, it is argued that the right to be forgotten remains complex and evolving. Its success depends on effective multi-layer and multi-stakeholder interaction. In this sense, it has become a prominent study object that reveals potential venues and pitfalls on a path towards more sophisticated data protection frameworks.

Keywords: Right to be Forgotten, RTBF, GDPR, Data Protection, Privacy, Freedom of Expression, Human Dignity, Intermediary Liability