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The right to be forgotten in data protection law: a search for the concept of protection

The right to be forgotten in data protection law: a search for the concept of protection Article 17 of the final draft of the General Data Protection Regulation (GDPR) establishes the so-called `right to be forgotten'. The provision reacts and relates to the decision by the European Court of Justice in the case of Google Spain v Mr. González on the `right to be de-listed' from an internet search engine. The decision in this case, and the final draft of the GDPR, both raise fundamental questions regarding the concept of protection of the corresponding fundamental rights and how the GDPR should be interpreted pursuant to these rights. This paper proposes a method of interpreting fundamental rights by referring not only to ontological categories such as `personal data' per se but also ­ more normatively ­ to their substantial guarantees. It is our belief that this approach helps to differentiate precisely between several fundamental rights that are applicable in the case, such as the right to privacy of Article 7 CFR and data protection under Article 8 CFR, and balance them against opposing fundamental rights. Keywords: right to be forgotten; right to be de-listed; right to data protection; right to private life; fundamental rights; European Charta of Fundamental Rights; method of interpretation; data protection regulation; http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png International Journal of Public Law and Policy Inderscience Publishers

The right to be forgotten in data protection law: a search for the concept of protection

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Publisher
Inderscience Publishers
Copyright
Copyright © 2015 Inderscience Enterprises Ltd.
ISSN
2044-7663
eISSN
2044-7671
DOI
10.1504/IJPLAP.2015.075049
Publisher site
See Article on Publisher Site

Abstract

Article 17 of the final draft of the General Data Protection Regulation (GDPR) establishes the so-called `right to be forgotten'. The provision reacts and relates to the decision by the European Court of Justice in the case of Google Spain v Mr. González on the `right to be de-listed' from an internet search engine. The decision in this case, and the final draft of the GDPR, both raise fundamental questions regarding the concept of protection of the corresponding fundamental rights and how the GDPR should be interpreted pursuant to these rights. This paper proposes a method of interpreting fundamental rights by referring not only to ontological categories such as `personal data' per se but also ­ more normatively ­ to their substantial guarantees. It is our belief that this approach helps to differentiate precisely between several fundamental rights that are applicable in the case, such as the right to privacy of Article 7 CFR and data protection under Article 8 CFR, and balance them against opposing fundamental rights. Keywords: right to be forgotten; right to be de-listed; right to data protection; right to private life; fundamental rights; European Charta of Fundamental Rights; method of interpretation; data protection regulation;

Journal

International Journal of Public Law and Policy – Inderscience Publishers

Published: Jan 1, 2015

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