[Episode 5] Contribution to the “Right to be Forgotten] Wikipedia article

The Right to be Forgotten has been one of the hottest trending topics of Internet Law in the past 6 months, ever since the May 13, 2014 ruling by the European Court of Justice opposing Google Spain and Google Inc to a Spanish citizen.

However, the Wikipedia.fr article on the Right to be Forgotten is a draft and it needs updating and citing to accurately describe the events that continue to unfold.

I would like to propose below a new organization for this article, that I will write in French even if the structure I offer here will be in English.

1. Historical context

The Right to be Forgotten is a result of 12 years of work from the European Commission, the European Parliament and the broader European institutions and I will start by describing the events that led to the ECJ ruling in May 2014.

1.1 1995: The European GDPR Directive

The efforts of the European Union to protect the digital lives of their citizens start with the landmark General Data Protection Regulation Directive: Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

Under the Article 12 of this Directive for instance, a person can ask for personal data to be deleted once that data is no longer necessary.

1.2 The European Commission and the European Parliament advocates for a Regulation

1.2.1 2010 – 2012: Redrafting the European Data Protection Regulation

Commissioner Vivian Reding started in 2010 advocating for a revised Data Protection Regulation and declared the right to be forgotten a pillar of this proposed regulation.

1.2.2 2011: The Opinion of the Article 29 Data Protection Working Party

In 2011, the Article 29 Data Protection Working Party published an Opinion 15/2011 on the Definition of Consent that emphasized the importance of granting the right to withdraw consent.

1.2.3 2012: The proposal of the European Commission

In 2012, the European Commission published its proposal for a European Data Protection Regulation stating that “the data subject shall have the right to obtain from the controller the erasure of personal data relating to them and the abstention from further dissemination of such data”.

1.3 Two landmark cases for the protection of personal data in the EU

A review of landmark cases related to the ECJ ruling of May 2014 would be interesting. However, I will only mention some cases here and leave it to Wikipedians with a more developed legal background to write or link to reviews if they think it is appropriate.

1.3.1 2009: Times Newspapers Ltd v United Kingdom

1.3.2 2013: Wegrzynowski and Smolczewski v Poland

2. The Right to be Forgotten

2.1 Google Spain, SL, Google Inc v Agencia Española de Protección de Datos

On this topic there is a detailed Wikipedia article but it has not ben translated in French. I will therefore try to summarize and translate it here.

2.1.1 The Agencia Española de Protección de Datos 

2.1.2 The Opinion of the Advocate General Jääskinen

2.1.3 Decision of the ECJ

2.2 Implementation in national legislations

The 1995 Directive as well as the proposed new one will have to be implemented in the national legislations of Member States. This section will keep track of different implementations .

2.3 Examples of similar legal mechanisms outside of the European Union

2.3.1 In the United States

There is an existing Children’s Online Privacy Protection Act in the US, and a proposed Do Not Track Kids Act referred to the Subcommittee on Communications and Technology of the United States Congress in 2013.

2.3.2 In the OECD

The OECD offers privacy guidelines in its OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data.

3. Reactions and critiques

3.1 Reactions from the concerned parties

This section will track the most important reactions from all concerned parties

3.1.1 From the private sphere

Google, Facebook, Microsoft, Apple, Amazon but also the representatives of Small and Medium Enterprises both in the US and in the EU.

3.1.2 From the public sphere

In different Member States as well as from the US Congress

3.4 Further issues

I will track here the most prominent issues raised on the right to be forgotten.

3.4.1 Balancing the Right to be Forgotten with the right to free speech

3.4.2 Balancing the Right to be Forgotten with the right to free speech

3.4.3 The issue of privacy in the US and in the EU

3.4.4 The issue of accountability

3.4.5 The issue of transnational regulation

3.4.6 Droit à l’oubli vs right to erasure

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