The right to be forgotten: separate conceptual issues

Abstract

The article is devoted to the study of the emergence and formation of the human right to be forgotten as the right of an individual to request the removal of his or her personal data from public access through search engines, under certain conditions. It is found that the establishment of the right to be forgotten is often associated with one of the key decisions of the Court of Justice of the European Union, namely, in the case of Google Spain v. Costeja Gonzalez, which has gained wide international publicity. However, it is important to note that freedom of speech and freedom of access to information are conflicting fundamental rights to the right to be forgotten. The right to privacy and the data protection regime do not exist in a vacuum: the right to privacy can often clash with other rights, in particular the right to freedom of expression, for example, in terms of censorship. The author analyses international judicial precedents regarding the acknowledgement of the right to be forgotten in the sphere of the digital human rights system, and finds that the rulings typically pertain to data that might drastically influence the fundamental rights to privacy and personal data protection. Furthermore, the courts explicitly assert their intention to achieve an equitable balance between these rights and the public's right to access information. Hence, the resolution of numerous conflicts is largely contingent on the factual context of each case. The author reviews the legal regulation of the right to be forgotten, in particular, the Regulation of the European Parliament and of the Council of 27 April 2016 (General Data Protection Regulation), the 1995 Data Protection Directive, as updated and supplemented by the above-mentioned Regulation, and the European Convention on Human Rights, etc. Although the concept of the right to be forgotten is not recognised in the Ukrainian legal system, the Law of Ukraine "On Personal Data Protection” states that deletion or destruction of personal data in the information landscape is possible upon filing a complaint or going to court.