The Right to Be Forgotten in EU Legislation: Why We Should Not Care About It

Abstract

The so-called right to be forgotten has recently been given a lot of attention by the public, mainly due to its rapid development within the European Union framework. There are apparently two parallel ongoing discussions: the first one focuses on an abstract right to be truly forgotten, giving individuals a right to erase the records of their past; and the second one which focuses strictly on the institution of law provided by the European legislators. Interestingly, both perspectives refer to the same regulation which in any way is claimed to be rather controversial, inconsistent, excessive or unrealistic. I believe that such views are biased and find no grounds in the legal provisions. To me, the EU right to be forgotten is the regulation of little significance and practical applicability, and has incorrectly been elevated to the one of main issues in the field of privacy debates. In fact, what is called the right to be forgotten in EU legislation is a very technical mean of exercising one’s control over personal data. Therefore, I argue that the majority of commentaries claiming that the existing right to be forgotten is controversial err in doing so. In order to demonstrate that my argument has legitimate grounds, this paper in its Chapter I provides an analysis of the current and upcoming regulatory EU framework of the right to erasure of personal data, as well as examines the legal force of the ruling in Google v Gonzalez. The majority of the analysis is drawn on statutory interpretation, which reveals that the material content and scope of application of the right to be forgotten are in fact significantly limited; current framework does not allow the erasure of data merely at request and provides a requirement of balancing rights which is not just a declaration but enforceable mechanism. Subsequently, as there are possible grounds for controversies, in the Chapter II of the present paper I argue that the correct application of provisions on the right to be forgotten should diminish a dimension of alleged problems to the degree, where that institution of law should not bother critics; where the problem of ‘hard cases’ arises, the regulatory framework provides appropriate means of reaching compliance (common tool-box and delegated powers of the European Commission). Some provisions of the current legal framework in the EU raise doubts: e.g. shift of the burden of proof and administrative fines. These should not be feared of, as the construction of these legal mechanisms ensures their reasonable application in practise. Additionally, legal grounds for the upcoming regulation might also seem doubtful.