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Putting Oblivion, Erasure and Forgetting into Context

8 Oct , 2014  | by:

Damian George and I recently published an article on the right to be forgotten respectively the right of oblivion and erasure in the Journal of Intellectual Property, Information Technology and Electronic Commerce Law (JIPITEC). In this publication we discuss different cases handled by French, German and Italian courts and attempt to understand how the different legal backgrounds have led to a diverse implementation of the European data protection principles into national legislation.

We draw different insights from our comparative case law analysis and would like to share some of them here.

First, and unsurprisingly, as the easy access and quick retrieval of information via search engines have catalyzed the online privacy concerns, a discussion about an “Oblivion/Erasure Due Process” (or a proportionate Take Down Process) has emerged. In particular, Google’s autocomplete suggestions have been disputed in courts. While there have long been uncertainty on how to rule in autocomplete software cases, nowadays German and Italian courts seem to agree to the establishment of a notice and take down obligation.

Second, the right of erasure has rarely been the only legal ground in disputes before courts. In fact, “the right of erasure as established in data protection law has served only in few instances as the only legal ground of a court decision. Instead, other civil or criminal law provisions have been called upon when an individual’s personality right is infringed.” (see chapter C of our article for more details).

Related to this second point, is the fact that oblivion can be achieved by other means than simple erasure. The link between oblivion and erasure is in fact depending stark on a case-by-case analysis and the courts have handled the issues differently.

Third, and interestingly, rarely mentioned in the current discourse on the right to be forgotten, is the insight that the right to oblivion – as it is understood by established court practice in the reviewed jurisdictions – can be waived. Courts in Germany and France have both disregarded a person’s right to oblivion because the individual demanding such a right had prior, publically communicated the disputed facts. One could pose the question whether or not a new right to be forgotten should ignore such a waiver and allow a right to have information erased when consent to its publication is withdrawn.

We come to the conclusion that:

while oblivion and erasure are complementary legal tools, the right of erasure has the potential to neglect the thorough balancing of conflicting interests.

In fact, the legal tools of oblivion and erasure must be seen as complementary tools:

(…) both concepts fulfil different purposes needed in legislation: while the right of oblivion incorporates a substantial concept for balancing conflicting interests in order to determine when once-newsworthy information should become irrelevant to the broader public, the right of erasure has a more procedural character.”

In its landmark case (European Court of Justice, C-131/12, Google Spain v Spanish Data Protection Agency) the ECJ understood the rights provided in Art. 12 (1) b and Art. 14 (1) Directive 95/46/EC as rather procedural rights, that may be invoked whenever data processing is not in accordance with data protection principles. Therefore, it saw no reasons to elaborate on the rights of freedom of information and expression. However, this is not only problematic but is also in contrast to the examined national case law in our article. The courts in France, Germany and Italy have shown that these rights must be carefully balanced against privacy and personality rights.

“This may be attributed to the fact that the focus of data protection law lies on the adherence of processing principles rather than on balancing conflicting fundamental rights on a case-by-case basis. Nevertheless, Art. 12 (1) b Directive 95/46/EC gives some discretion with regards to the measures that can end a privacy infringement. Regulators should bear in mind that while erasure might be the easiest way to end a privacy infringement, it may, however, not be the most proportionate one in all cases.”

See also Stefan Kulk’s recent post and Anna Berlee’s recent post about the Google Spain decision on this blog.

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