R2E – R2O – RtbF: What’s in a Name?

– Excerpt from Draft Article –

The Google Spain case has definitely added fuel to the fire regarding the so-called ‘Right to be Forgotten’ debate. Much of the discourse, however, has mixed up several related concepts. Hence, it is important (once again) to distinguish and clarify three important notions: the ‘right to be forgotten’, the ‘right to object’ and the ‘right to erasure’. First of all, the so-called ‘right to be forgotten’ is not mentioned in the Directive (and it has been removed from the latest DPR draft as well), but is rather used as a catchphrase in the rhetoric of different sides in the debate (pro and contra). In fact, the ‘right to be forgotten’ can be described as an umbrella term, aiming to encapsulate different important rights. Its very name already causes confusion by suggesting an obligation on third parties to ‘forget’. Instead, it is a rather clumsy translation into law of a broader policy goal. In this regard, it can be traced back to the French droit a l’oubli. This ‘right’ has traditionally been applied in situations where an individual was confronted with publicity of his personal life in the media in a disproportionate or unreasonable way (e.g. an ex-convict who sees new articles appearing decades after the facts). Nevertheless, it has no dedicated legal ground and is usually invoked on the basis of a variety of legal frameworks (e.g. right of personal portrayal, defamation, general right to privacy, etc.). Given the potential conflict with the right to freedom of expression, the right has only been applied sporadically by Courts. In any situation, this right implies the presence of an (potential) imminent harm that can only be prevented by removing the information or at least preventing its (further) publicity.

The right to object and right to erasure can be found in the data protection framework. The rationale of these rights is not as much to prevent/withdraw the publication of one’s personal data, but rather to empower data subjects. Instead of rights to ‘stop me from speaking about you’, they are intended as a check on how personal data is used and allow individuals to control the use of their personal data over time. The right to object (article 14) can be invoked on the basis of compelling and legitimate grounds, relating to one’s particular situation. It should be emphasized, however, that this right only relates to a specific processing activity. When successfully exercised, the controller will not be allowed to process the personal data for the purposes objected to anymore. The same personal data might still be processed for different purposes for as long as these other activities comply with the data protection framework. A social network, for example, will not be able to process my personal data for direct marketing anymore, but can still use it for other purposes (e.g. statistics, personalisation, etc.). The right to erasure (art. 12(b)) on the other hand, addresses the personal data itself. It can be invoked whenever the controller does not comply with the Directive, in particular because of the incomplete or inaccurate nature of the data. In other words, when the data subject can demonstrate the controller has violated any of its legal obligations under Directive 95/46, it can – depending on the facts – obtain the removal of his/her personal data. If successful, the data cannot be used for any other purpose.

To summarise, whereas the right to object relates to a specific processing activity, the right to erasure relates to the data itself. The ‘right to be forgotten’ constitutes a catchy – though deceptive – policy goal.


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