Forget Me, Forget Me Not: Reconciling Two Different Paradigms of the Right to Be Forgotten

Authors

Lawrence Siry, University of Luxembourg

Abstract

In May of 2014, the Court of Justice of the European Union handed down its decision in the case of Google Spain SL v. Agencia Española de Protección de Datos. This landmark decision ignited a firestorm of debate over the "right to be forgotten": the right of users to withdraw information about themselves available on the internet. With concerns about the restriction of the freedom of expression on the internet, many commentators have criticized the decision as unworkable and dangerous. Others have recognized continuity in the development of privacy and data protection jurisprudence within the European courts. Meanwhile in Brussels, the European Union (EU) has been crafting a new data protection regulation, which will apply to its twenty-eight Member States. This new regulation will more than likely extend the concept of some form of the "right to be forgotten," or more precisely, a right to erasure of material on the internet.

This paper will explore the basis and impact of the Google Spain decision. Beginning with an exploration of the theoretical underpinnings of the "right to be forgotten" in Europe, the paper will attempt to reconcile the conceptualization of this privacy right with the privacy framework existing in the United States. It will then turn to proposals for legislation from both sides of the pond to assess what they will and will not potentially achieve. The paper will consider the European Union rules in light of the current framework and the proposed reforms, comparing European and American provisions, specifically California Law and proposals pending before the United States Congress. Are these measures the silver bullet that privacy advocates hope for, or will they open a Pandora's box of excessive Internet censorship that will cause the destruction of history? Are the two theoretical frameworks compatible, signalling a convergence ofpolicies towards a more privacy orientedlegal structure? To this end, the practical application of the proposed rules, their effectiveness, and their efficacy will be examined.

Recommended Citation

Siry, Lawrence (2014) "Forget Me, Forget Me Not: Reconciling Two Different Paradigms of the Right to Be Forgotten," Kentucky Law Journal: Vol. 103: Iss. 3, Article 2.
Available at: https://uknowledge.uky.edu/klj/vol103/iss3/2