The future of the European Union “Right to be Forgotten”

In its landmark ruling of May 13, 2014, the European Court of Justice deduced from European data protection law, a right for European citizens to remove search results which display information, such as spent convictions and other past indiscretions, which, even though lawfully published, has become out-dated or irrelevant in such a way as to harm the individual’s privacy.

Today, this so-called “Right to be Forgotten” stands—in two ways—at a crossroads. First, following a years-long dispute between Google and the French data protection authority, the Commission Nationale de l’Informatique et Libertés, the French Conseil d’Etat has asked the ECJ for a preliminary ruling to provide some much-needed guidance on the implementation of the right, and in particular whether removal of search results should be performed locally in the EU or in a global manner. Second, the entry into force of the General Data Protection Regulation raises the issue of whether and how the “Right to be Forgotten” contained in its Article 17 will impact the current implementation model for erasure in the European Union. Indeed, that provision, having been drafted before the ECJ rendered the Google Spain decision, foresees an expanded scope of application going beyond search engines.

The present contribution discusses how each of these two developments will affect the future of the Right to be Forgotten in Europe. Observing that the current implementation model of the right following Google Spain —based on individual private ordering and, in particular, on Google’s inhouse standards and practices—lacks means of scalability, the article concludes that any expansion of either its geographical or material scope could lead to a practical break-down. The author then proposes an alternate implementation model inspired by existing alternate dispute resolution systems.