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Abstract

In May 2014, the Court of Justice for the European Union ("CJEU") surprised the global cyber law community by holding that search engines like Google are "controllers" of the processing of personal data under the European Union Data Protection Directive. This means that they are obliged in some circumstances to remove links from search results that pertain to information that infringes on an individual's rights under the Directive. This obligation has come to be referred to as an aspect of a digital "right to be forgotten." The search results in question related to a mortgage sale of property in a bankruptcy that had taken place in 1998. In 2010, links to a Spanish newspaper's advertisement of the sale showed up prominently in Google search results and were no longer relevant and arguably damaging to the data subject.

The case sparked global debate about who should ultimately be responsiblefor the protection and erasure ofprivate information online. The practicalresult of the decision leaves much discretion in the hands of online entities, such as Google, Bing, and Yahoo!, to implement their own internal proceduresfor protecting personal data on the basis of individual complaints made to them. There is little to no governmental or judicial oversight of these procedures.

This Article examines the impact of the recent CJEU decision on global privacy protection. In particular, it canvasses questions about who should bear responsibilityfor the protection of privacy, ultimately arguing that it is unbefitting and socially undesirable for unchecked businesses to act as the ultimate arbiters ofprivacy. However, the pendulum may now have swung so far in this direction that the only meaningful approach to protecting online privacy going forward is for governments and interest groups to assist such businesses in making appropriate privacy-protective decisions.

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