Going Dark or Living Forever: the Right to be Forgotten, Search Engines and Press Archives

Abstract

The internet has brought many new opportunities to all walks of life. It has given us the possibility to address the public on a global scale, communicate more easily, and drastically broadened our access to all kinds of information. One of the downsides of these blessings has been reflected in the privacy concerns that accompany these technological advancements. In a connected world, one’s digital identity can quickly become a heavy millstone around the neck. As a consequence, calls have been made to introduce a ‘right to be forgotten’ online.

This thesis starts with the observation that two key information disseminators in the digital age have been subjected to new responsibilities under the umbrella of the ‘right to be forgotten’. The desire of some individuals to change – and exercise control over – their online image led them to approach media outlets that made their personal information initially available online or search engines that subsequently brought it to the public at large, or both. However, as appears, these routes significantly differ from each other.

The first part of this research is devoted to taking stock of the saga on the right to de-reference links – i.e., the manifestation of the ‘right to be forgotten’ in search engines – that triggered the landmark judgment of the CJEU in Google Spain. This part discusses the CJEU’s follow-up cases that elaborated on important unanswered questions, along with, inter alia, the referring courts’ recent answers to the cases underlying those preliminary questions.

Following Google Spain, search engines attracted a bulk of attention. The second part of this thesis, conversely, expounds the broader right to erasure – due to free speech concerns – in the thorny context of the press and their archives. It reveals that the ‘press’ route should not be excluded all too fast. This chapter stresses that balancing is a key element, so a pivotal role is reserved for the case-law of the ECtHR. The court in Strasbourg has been reluctant so far in upholding erasure or anonymisation of news archives (or parts of them), but it suggested that ‘less restrictive measures’ might be tolerable. The latter arguably enables one to tailor approaches to what the balancing requires in individual cases. Cases at national level at least illustrate that balancing not necessarily turns out favouring the freedom of expression and information.

Against this background, the third chapter examines whether the initiator of a request chooses the avenue he or she wishes to pursue. It argues that data subjects should be able to freely determine the route that seems to be most appropriate for their request.

The thesis concludes that EU data protection law does not allow one to estimate in general which route is better suited for the purpose. This last chapter eventually provides recommendations that should guide individuals when they seek the state of being forgotten.

Keywords: right to be forgotten, right to erasure, article 17 GDPR, search engines, press archives, anonymisation, delete