Aurelia Tamò and Damian George
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
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.
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
Before discussing new approaches for protecting the
individual’s privacy with data protection tools, we
The term “data protection” might be misleading
since the protected good is not the data itself but the
data subject’s fundamental privacy rights.
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.
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.
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
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
among the underlying concepts based on their legal
rationale and scope.14
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