Oblivion, Erasure and Forgetting in the Digital Age

Author:Aurelia Tamò and Damian George
Pages:71-87
SUMMARY

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, when the European Commission proposed a right to be forgotten, this proposal received broad public interest and was debated intensively. Under certain conditions, individuals should... (see full summary)

 
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Oblivion, Erasure and Forgetting in the Digital Age
2014
71
2
A. Introduction
1
Every individual has experienced episodes in his
life he enjoys remembering (and having others
remember), and others that he would like to forget
(or have others forget). As individuals increasingly
make frequent public use of the Internet, users have
become aware of the potential harm persistent
information can cause when stored on the eternal
memory of the Internet. Considering that digital
abstinence is not an option, users are expressing an
increased fear of being haunted by their digital past.1
2
The European Commission (EC) claims to have
recognized the problem and recently proposed a
“right to be forgotten and erasure” as part of the
revision of the 1995 European Data Protection
Directive2 (Directive 95/46/EC) principles. In light
of the increased online activities and opaque privacy
Oblivion, Erasure and Forgetting
in the Digital Age
by Aurelia Tamò and Damian George
Aurelia Tamò is a PhD Candidate, Chari of Information and Communication Law, University of Zurich
Damian George is a junior associate at Nobel & Hug attorneys at law in Zurich
© 2014 Aurelia Tamò/Damian George
Everybody may disseminate this ar ticle by electronic means and m ake it available for download under the terms and
conditions of the Digita l Peer Publishing Licence (DPPL). A copy of the license text may be obtaine d at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8 .
Recommended citation: Aurelia Tamò and Damian George, Oblivion, Erasure and Forge tting in the Digital Age, 5 (20 14) JIPITEC
71, para. 1.
Keywords: Right to be forgotten, oblivion, erasure, privacy, data protection, defamation, autocomplete sugges-
tions, notice and take down, EU data protection directive, data protection reform, data protection
regulation, ECJ C-131/12 Google v. Spain
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 that the attempt to implement oblivion,
erasure and forgetting in the digital age is a complex
undertaking.
Abstract: 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, when the European
Commission proposed a right to be forgotten, this
proposal received broad public interest and was
debated intensively. Under certain conditions,
individuals should thereby be able to delete personal
data concerning them. More recently – in light of
the European Parliament’s approval of the LIBE
Committee’s amendments on March 14, 2014 – the
concept seems to be close to its final form. Although
it remains, for the most part, unchanged from the
previously circulated drafts, it has been re-labelled as
a “right of erasure”. This article argues that, despite
its catchy terminology, the right to be forgotten can
2014
Aurelia Tamò and Damian George
72
2
policies of web services, the EC wants to strengthen
the control and digital rights of individuals.
Therefore, users should be given the right to have
their data fully removed.3
3
Legal scholars in Europe and the US have debated
the implications of an online right to be forgotten.

taken by Mayer-Schönberger in his oeuvre “Delete”.4
The concept of deletion has since been central to
the academic debate, which focuses on the legal,
philosophical and sociological foundations as well
as potential implications of a policy response.
4 In this article we approach the topic at hand from
a European legal tradition perspective, leaving
aside the US-American concepts in this respect.

US has been rather critical of the concept of the right
to be forgotten.
5
In particular the implementation
of the so-called “Eraser Law” (SB 568, California
Business & Professions Code Sec. 22581) in California
was controversially discussed in the media.6
5 The focus of this article lies on interactions among
      
government activities. We will elaborate throughout
this article that one should not restrict the debate
to the legal provisions but must simultaneously
draw insights from the elaborated case law. We will
support this approach by showing that European
Member States have dealt with questions relating to
oblivion and erasure in the age of online activities
and interactions by continually balancing the
 
norms and concepts.
B. Oblivion, Erasure and Forgetting
– Understanding the Concepts
Behind the Terminologies
I. Privacy Protection in Europe
6
Before discussing new approaches for protecting the
individual’s privacy with data protection tools, we
   
context.
7
The term “data protection” might be misleading
since the protected good is not the data itself but the
data subject’s fundamental privacy rights.
7
While the
protection of privacy, and the individual’s right to
personality in particular, have long been discussed
and contested in national legislations in Europe,
data protection laws have been evolving only since
the second half of the twentieth century.
8
Unlike
mechanisms that protect personality, which are
mostly used retroactively (ex post), data protection
tries predominantly to guarantee the protection in
advance (ex ante) by considering the processing of
data as privacy infringing “by default” and therefore
making processors adhere to data quality principles.
In other words, data protection law
has introduced the default rule that the handling of personal
data is per se an intrusion unless guiding principles were
followed like the purpose limitation principle, the fairness
principle and other safeguards like a right of access to one’s
own data. 9
8 In the European Union, the processing of personal
       
of data quality as provided for in Art. 6 Directive
95/46/EC but must also be legitimate. The criteria
for making data processing legitimate are listed in
Art. 7 Directive 95/46/EC. One important criteria is
consent. However, despite consent being regarded as
a promising tool, the reliance upon consent as a basis
   
private parties has not been successful in providing
the intended self-control of the users.10 The EU’s
data protection reform efforts strive – amongst
other things – to increase the individual’s control
by clarifying, and possibly strengthening, its rights.
11
One of these reinforced rights is currently known
under its original terminology, the “right to be
forgotten”. Thereby, the EU attempts to strengthen
the individual’s self-determination12 with regard to
the processing of his personal data.
II. The Right of Oblivion vs.
the Right to Erasure
9
In both the literature and political discussions, there
   
the overall concept of “deletion” of personal data.
While some use the terms “the right of oblivion”,
“the right to forget”, “the right to be forgotten”
or the “right to erasure” as synonyms, or at least
sometimes interchangeably,
13
others differentiate
among the underlying concepts based on their legal
rationale and scope.14
10
In particular, a distinction between the right of
oblivion and the right of erasure can add value to
the maze of terminologies:
11 First of all, the right of oblivion – or le droit a l’oubli
resp. il diritto al’oblio according to its French and
Italian root15 – has historically been applied in
severe cases of (potential) defamation and breach
of privacy of (mostly) ex-convicts.16 The right offers
deletion of some public data that are no longer
newsworthy, which highlights the importance of
the time component, i.e. the period elapsed between
the creation of the public data and the request for
oblivion.17 The rationale behind the concept of

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