1. The Right to Be Forgotten: Reflections on
Cynicisms and Possible Responses
Kinfe M. Yilma
9th May/2012
Current Developments in Information Society(Law)
NRCCL-CRIDS
University of Namur, Belgium

2. Outline
• Introduction
• Meaning, Nature and Rationale
• Concerns
-Free Speech
-General Interest of the Public to Remember
• Conclusion

3. Introduction
• Ubiquitous digital remembering enables easy
availability of personal data to a wide array of
audience including prospective employers
“Technologies are making the past easily and
eternally present”[Allen, 2008]
• Web 2.0 accelerates the rate of unwanted publicity
and invasion of data privacy
• First hand victims are teenagers
• Right to be forgotten proposed
• Focus: Is the right really a threat?

4. Meaning, Nature and Rationale(1)
• The French ‘le droit à l’oubli’[Right of Oblivion] of
1999 is often mentioned as the intellectual root for
the right to be forgotten.[Rosen, 2012] It entitles
complete erasure of ones criminal record after
discharging jail time.
• This view is partly dubious as the right(privilege) to
demand erasure of criminal history existed even
earlier before 90s, at least for more than half a
century.
-E.g. Repealed Ethiopian Penal Code(1957)
recognized ‘privilege’ of ‘reinstatement’ to,
i.a.,persons who have undergone their penalties[Arts

5. Meaning, Nature and Rationale(2)
▪Spain pioneered in introducing the right to be forgotten
as we know it today.[Castellano, 2012]
‘citizens, who neither are not public figures nor are
subject of news of public relevance, have right to
react and correct the unlawful inclusion of personal
data on the internet.’
▪Google has been ordered to delete links to any
website containing nasty content in violation of the
right to be forgotten. The case is now referred to
court of Justice for preliminary ruling.[AEPD vs
Google]

6. Meaning, Nature and Rationale(3)
EU:
• Initially outlined on 4th Nov. 2010, COM(2010) 609
as part of overhaul of DPD/46/95/EC
• Formally proposed on 25th January/2012,
COM(2012) 11
Rationale:
-building users trust on online services and increasing
control of personal information
-protecting the youth(cf. Art 17, Recital 53, DPR)
-Inadequacy of the existing regime

7. Meaning, Nature and Rationale(4)
Meaning and Nature:
• The right implies a ‘control-right’ of the data
subject to decide on fate of data on
him.[Ausloos, 2012]
• ‘the right of individuals to have their data no
longer processed and deleted when they are
no longer needed for legitimate purposes’
[COM(2010) 609 ]

8. Meaning, Nature and Rationale(5)
• Right to be forgotten is implicit in extant data
protection principles
- personal data cannot be kept longer than is
necessary for the purpose for which it is collected or
further processed[Art 6(e), DPD]
- the right of data subjects to obtain from the data
controller eraser or blocking of data[Art 12(b), DPD]
- the general right to object data processing[Art 14,
DPD]
• Limited scope and imprecision of what constitutes
consent crippled the reach of these principles

9. Meaning, Nature and Rationale(6)
• One can also read the ‘aroma’ of the right to be
forgotten into the e-privacy and data retention
directives
- traffic data must be erased or made anonymous
when it is no longer needed for the purpose of the
transmission of a communication[Art 6, e-Privacy
Directive]
-service providers must store traffic and location data
for up to two years[Art 3, Data Retention Directive]

10. Concerns
I. Issues of Free speech
▪Concerns mainly come from free speech over-
protective US camp
-The concerns are premised on a higher level of
protection given to privacy rights in Europe than free
speech.
▪Rosen argues ‘the right to be forgotten would require
controllers to delete personal data which have gone
viral over the net.’[Rosen, 2012]
▪He also claims that the right could be invoked against
search engines which just ‘link’ to content

11. Concerns(2)
▪ Huge fines ensuing non-compliance up to €500,000
or 1% of annual world wide income[Art 79(5(c))]
would induce self-censorship
Possible Responses
▪The right is restricted to seeking deletion and further
dissemination(sic)…[Art 17(1)]
-Likely to exonerate from complying with request for
deletion of data which have gone viral and
undeletable

12. Concerns(3)
▪ The right is enforceable only against ‘controllers who
authorized a third party publication of personal
data’(sic)[Art 17(2), Recital 54, DPR]
-This may not necessarily apply to search engines
which just provide links to content
-The upcoming ECJ ruling in Google Spain vs
AEPD would probably throw light on this
-Another basic issue would be ‘are search engines
controllers within the meaning of Art 2(d), DPD?
-WP 169 doesn’t give a clear answer
-Bygrave writes ‘control’ is the crucial criterion

13. Concerns(4)
▪Exceptions for exercising right of freedom of
expression[Art 17(3(a)) cum Art 80, DPR]
- European case law also reveals beckoning
protection to free speech
Examples:
●Winer v UK(1978)
●Von Hannover v Germany(2004)
● Satakunnan Markkinapörssi and Satamedia(C-
73/07)
● Volker und Markus Schecke GbR and Hartmut
Eifert(Joined Cases-C-92/09 and C-93/09)

14. Concerns(5)
II. General Interest of the Public to Remember
▪ Right to be forgotten would render otherwise
important data inaccessible, incomplete and
misrepresentative of reality[Ausloos]
▪ Dwindles right to information of the public
Possible Responses
▪Deletion cannot be claimed where ‘the data are
necessary’[acontrario reading of Art 17(1(a)), DPR]
▪Deletion doesn’t apply where data are necessary for
reasons of public interest, historical, stastical and
scientific research purposes[Art 17(17(3(b,c)), 81,
83, DPR]

15. Conclusion
▪The right to be forgotten is a leap forward in regaining
control over ones data in the digital age
▪Introduction of the right per se would not be a threat as
advertised
▪Issues of who decides what data is no longer
necessary, liability of intermediaries have to be,
though, hammered down
-Cf. Commission empowered to adopt specific
criteria[Art 17(9) cum Art 86, DPR]

16. Conclusion(2)
Supplementary Measures
▪Awareness creation via, e.g. EU standard privacy
information notices
▪Encouraging self-regulation through codes of
conduct(Art 38, DPR)
▪Encouraging Technical measures
-E.g. Tigertext, X-Pire
cf. ‘Expiration Dates’[Mayor-Schonberger,
Delete(2009)]
▪Rosen proposes Japanese Web 2.0 users culture of
using pseudonyms online cf. ‘Digital Abstinence’

17. References
• Allen(2008), Dredging up the Past: Lifelogging, Memory and
Surveillance, 75 Univ. Chic. L. Rev. 47
• Ausloos(2012), The Right to be Forgotten-Worth
Remembering?, Computer Law and Security Review
• Castellano(2012), The Right to Be Forgotten Under European
Law: A Constitutional Debate, Lex Electronica, Vol. 16, No. 1
• Rosen(2012), The Right to Be Forgotten, 64 Stanford Law
Review Online 88
• Rosen(2011), Free Speech, Privacy, And The Web That Never
Forgets(Keynote Address), Journal on Telecommunication and
High Technology Law, Vol. 9
• Weber(2011), The Right to Be Forgotten: More Than a
Pandora’s Box?, 2JIPItec 120