Academic journal article Columbia Journal of Law and Social Problems

The Right to Remember: The European Convention on Human Rights and the Right to Be Forgotten

Academic journal article Columbia Journal of Law and Social Problems

The Right to Remember: The European Convention on Human Rights and the Right to Be Forgotten

Article excerpt

I.Introduction

Privacy law is currently in a period of rapid development. Modern information sharing technology has created significant challenges in maintaining previously accepted privacy norms, and the law is trying to keep pace. One specific challenge European lawmakers are trying to overcome is the eternal memory of the Internet.1 Historically, private information about a person's past would typically fade away naturally over time. Even if records of that information remained, difficulty accessing those records ensured people an opportunity to live unfettered by ancient mistakes. Local newspapers might have been available only regionally, so moving to a faraway location could help someone live down his or her past. Today, only a simple Google search separates us from our most embarrassing history, and for the foreseeable future, that information will always remain available online.

In order to counteract the effects of the modernization of information technology, in 1995 the European Union (EU) passed Directive 95/46, known as the Data Protection Directive (Directive).2 On its face, the Directive appears to be concerned with preventing data processors from retaining personal data indefinitely, and using it for purposes that the data subjects never agreed to when it was gathered.3 As search engines were in their infancy in 1995, it is fair to assume that the act did not contemplate the problem of data remaining available on the internet indefinitely.

In 2014, the European Court of Justice (ECJ) brought the language of the Directive to bear on the problem of the Internet's unending recall in a case called Google Spain v. Gonzalez.4 By ruling that running a search engine constitutes "data processing,"5 and classifying Google as a "controller"6 of that data, the Court bestowed on Google the obligation to remove certain personal information from its search results upon the data subject's demand. This, in essence, created a European "right to be forgotten." The case itself involved a Spanish man who sued Google, demanding that the company remove a ten year old article discussing his financial troubles.7 He argued that Google, as the controller of this data, was obligated under the Directive to expunge this personal information because it was outdated, and irrelevant.8 The Court agreed. Essentially, by forcing Google to hide this information,9 EU law has achieved something arguably closer to the traditional state of personal privacy.

This decision has many critics,10 particularly in the United States,11 where the balance between the right to freedom of expression and the right to privacy tips more towards the former than in Europe.12 However, even accepting that the goal of the right to be forgotten, restoring a more favorable footing for personal privacy, is admirable, the law as currently implemented has significant flaws. One major problem stems from the way in which the right to be forgotten is actually enforced. When it comes to adjudicating and enforcing right to be forgotten claims, Google itself is on the hook.13

Following the Google Spain v. Gonzalez decision, when a data subject believes that his or her data is being processed in a manner inconsistent with the Directive, the claim is adjudicated by Google, rather than a judge.14 Although the data subject can bring the matter into court if he or she disagrees with Google's decision, Google is responsible for the initial determination.

This creates an unfortunate position where, as will be discussed later, it is difficult for either the content provider or the public to contest any takedown requests that Google decides to grant, even when the decision is not in compliance with the Court's decision and the Directive.

As a means of hearing and deciding claims, Google created an online form to allow European citizens to request the removal of webpages that contain personal data relating to them.15 If Google grants a request, then the links are removed from searches for the requester's name. …

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