• Anne Mette Sand Nielsen
4. semester, Jura, Kandidat (Kandidatuddannelse)
The right to be forgotten (RTBF) has been part of the European Commission's initiative for GDPR since 2012 but has attracted more attention following the European Court of Justice's (ECJ) ruling in the Google Spain case in 2014. In this case, the ECJ established that, under certain circumstances, the operator of a search engine is obliged to erase links to web pages published by third parties containing personal data. With the GDPR, a more general RTBF has been presented in Article 17(1), while at the same time containing significant restrictions in the scope of application. Under Article 17(3), the right to data protection must be balanced against the fundamental rights and reasons of public interest. The purpose of this dissertation is to investigate whether the data subject's RTBF has been strengthened with the GDPR compared to case law.

The first part reviews the central concepts and underlying considerations of data protection, including the right to privacy and personality, as well as fundamental rights. The data protection under the Charter of Fundamental Rights is briefly compared to the protection under the European Convention on Human Rights.

The second part describes the RTBF under the GDPR Article 17, including the scope of application, the notification obligation and the exemptions provision. Article 17 has been criticized, for conflicting with other provisions of the GDPR, as Article 17(3) paradoxically can provide a legal basis for continued processing in situations where personal data should be erased according to other provisions, in particular Article 5(1).

In the third part of the dissertation the Google Spain case is analyzed. The RTBF, according to case law, is compared to the right under the GDPR. The ECJ and the European Court of Human Rights (ECtHR) have different approaches to the balancing of fundamental rights, as the ECJ presents a rule of presumption, after which the right to data protection takes precedence. Through analysis of the legislative process, it is concluded that the legislator leans towards the practice of the ECtHR, where after fundamental rights are ranked equally.

In the fourth part of the dissertation, the application of the RTBF on search domains outside of the European Union is analyzed. The analysis is based on a pending case between CNIL and Google Inc that concerns the territorial scope of European data protection law. If CNIL’s demand for effective protection of the data subject is acknowledged, it may lead to conflicts with third countries, such as the United States, which do not recognize the RTBF. Principles of public international law, such as the subjective territoriality principle and the passive personality principle, provide a legal basis for global erasure. At the same time, it is not desirable that less democratic regimes can use the RTBF to determine what information is to be made globally available.

In closing, consideration is given to the future application of the RTBF, and the guidelines for the balancing of considerations in Article 17(3)(a) are investigated further based on case law. The ECJ leans towards the conclusion that data protection is a "super right", whilst the relationship between fundamental rights, according to the legislature, must be determined based on a case-by-case assessment.

The conclusion of the dissertation is that the wording of the RTBF has been strengthened, as it is now established as a right rather than a principle. The relationship between Article 17(1) and (3), however, makes it difficult to clarify the scope of application. Thus, the real protection of the data subject is therefore only finally established when the ECJ has had an additional opportunity to interpret the provision. There is a difference in the legislator's and the ECJ's approach to the consideration of fundamental rights, as the ECJ applies less importance to freedom of speech and freedom of information than the legislature and the ECtHR does. The ECJ seems to apply a wide interpretation of the RTBF, including the interpretation of the territorial scope of application. The approach of GDPR Article 3 makes it possible to extend the territorial scope, including the application of the RTBF, to domains outside the EU. Hence, the data subject may obtain a qualified right to request a global erasure of personal data that relates to him or her.
Udgivelsesdato5 dec. 2018
Antal sider69
ID: 290950189