The Right to Be Forgotten More Than a Pandora’s Box?

Recently, political voices have stressed the need to introduce a right to be forgotten as new human right. Individuals should have the right to make potentially damaging information disappear after a certain time has elapsed. Such new right, however, can come in conflict with the principle of free speech. Therefore, its scope needs to be evaluated in the light of appropriate data protection rules. Insofar, a more user-centered approach is to be realized. “Delete” can not be a value as such, but must be balanced within a new legal framework.

On the Search for an Adequate Scope of the Right to Be Forgotten

During the last decades, the virtual world increasingly gained importance and in this context the enforcement of privacy rights became more and more difficult. An important emanation of this trend is the right to be forgotten enshrining the protection of the data subject’s rights over his/her “own” data. Even though the right to be forgotten has been made part of the proposal for a completely revised Data Protection Regulation and has recently been acknowledged by the Court of Justice of the European Union (“Google/Spain” decision), to date, the discussions about the right and especially its implementation with regard to the fundamental right to freedom of expression have remained rather vague and need to be examined in more depth.

The Netherlands: Darfurnica, Miffy and the right to parody!

VAR

Privacy in the Post-NSA Era: Time for a Fundamental Revision?

Big Brother Watch and others have filed a complaint against the United Kingdom under the European Convention on Human Rights about a violation of Article 8, the right to privacy. It regards the NSA affair and UK-based surveillance activities operated by secret services. The question is whether it will be declared admissible and, if so, whether the European Court of Human Rights will find a violation. This article discusses three possible challenges for these types of complaints and analyses whether the current privacy paradigm is still adequate in view of the development known as Big Data.

Privacy as human flourishing: Could a shift towards virtue ethics strengthen privacy protection in the age of Big Data?

Privacy is commonly seen as an instrumental value in relation to negative freedom, human dignity and personal autonomy. Article 8 ECHR, protecting the right to privacy, was originally coined as a doctrine protecting the negative freedom of citizens in vertical relations, that is between citizen and state. Over the years, the Court has extended privacy protection to horizontal relations and has gradually accepted that individual autonomy is an equally important value underlying the right to privacy. However, in most of the recent cases regarding Article 8 ECHR, the Court goes beyond the protection of negative freedom and individual autonomy and instead focuses self-expression, personal development and human flourishing. Accepting this virtue ethical notion, in addition to the traditional Kantian focus on individual autonomy and human dignity, as a core value of Article 8 ECHR may prove vital for the protection of privacy in the age of Big Data.

Global Standards: Recent Developments betweend the Poles of Privacy and Cloud Computing

The development of the Internet has made it possible to transfer data ‘around the globe at the click of a mouse’. Especially fresh business models such as cloud computing, the newest driver to illustrate the speed and breadth of the online environment, allow this data to be processed across national borders on a routine basis. A number of factors cause the Internet to blur the lines between public and private space: Firstly, globalization and the outsourcing of economic actors entrain an ever-growing exchange of personal data. Secondly, the security pressure in the name of the legitimate fight against terrorism opens the access to a significant amount of data for an increasing number of public authorities.And finally,the tools of the digital society accompany everyone at each stage of life by leaving permanent individual and borderless traces in both space and time. Therefore, calls from both the public and private sectors for an international legal framework for privacy and data protection have become louder. Companies such as Google and Facebook have also come under continuous pressure from governments and citizens to reform the use of data. Thus, Google was not alone in calling for the creation of ‘global privacystandards’. Efforts are underway to review established privacy foundation documents. There are similar efforts to look at standards in global approaches to privacy and data protection. The last remarkable steps were the Montreux Declaration, in which the privacycommissioners appealed to the United Nations ‘to prepare a binding legal instrument which clearly sets out in detail the rights to data protection and privacy as enforceable human rights’. This appeal was repeated in 2008 at the 30thinternational conference held in Strasbourg, at the 31stconference 2009 in Madrid and in 2010 at the 32ndconference in Jerusalem. In a globalized world, free data flow has become an everyday need. Thus, the aim of global harmonization should be that it doesn’t make any difference for data users or data subjects whether data processing takes place in one or in several countries. Concern has been expressed that data users might seek to avoid privacy controls by moving their operations to countries which have lower standards in their privacy laws or no such laws at all. To control that risk, some countries have implemented special controls into their domestic law. Again, such controls may interfere with the need for free international data flow. A formula has to be found to make sure that privacy at the international level does not prejudice this principle.

Oblivion, Erasure and Forgetting in the Digital Age

In light of the recent European Court of Justice ruling (ECJ C-131/12, Google Spain v Spanish Data Protection Agency),the “right to be forgotten” has once again gained worldwide media attention. Already in 2012, whenthe European Commission proposed aright to be forgotten,this proposal received broad public interest and was debated intensively. Under certain conditions, individuals should thereby be able todelete personal data concerning them. More recently – in light of the European Parliament’s approval of the LIBE Committee’samendments onMarch 14, 2014 – the concept seems tobe close to its final form.Although it remains, for the most part,unchanged from the previously circulated drafts, it has beenre-labelled as a“right of erasure”. This article argues that, despite its catchy terminology, the right to be forgotten can be understood as a generic term, bringing together existing legal provisions: the substantial right of oblivion and the rather procedural right to erasure derived from data protection. Hereinafter, the article presents an analysis of selected national legal frameworks and corresponding case law, accounting for data protection, privacy, and general tort law as well as defamation law. This comparative analysis grasps the practical challenges which the attempt to strengthen individual control and informational self-determination faces. Consequently, it is argued that narrowing the focus on the data protection law amendments neglects the elaborate balancing of conflicting interests in European legal tradition. It is shown thatthe attemptto implement oblivion, erasure and forgetting in the digital age is a complex undertaking.