The Right to be Forgotten: Dynamics of Privacy and Publicity

Abstract

The passage of time may affect the balance of the interests involved in the processing of personal data. In particular it may have an impact on the trade-off between publicity interests and privacy interests with regard to information made available online. Changes in this trade-off may justify a transition in the legal status of the same piece of information: what was legitimately distributed at an earlier time may no longer be legitimately provided to the public at a later time. This idea is at the core of the so-called “right to be forgotten”, namely, the data subject’s right to obtain, at a later time, the erasure of personal information that originally was legitimately processed. This right has been endorsed in a number of judicial decisions in various EU member states, and has been explicitly affirmed in the Proposal for a General Data Protection Regulation, presented by the EU commission in 2012. Here I propose a method for modelling the evolution of the privacy and publicity interests through time, and for assessing the impacts of a discipline of the right to be forgotten on the online distribution of information. I will distinguish different trends in the trade-offs between privacy and publicity, and more generally between the interests that would be promoted by a certain processing and those that would be demoted by it. I will argue that in cases where there is a reversal-time, mainly a time when the first interests, originally prevailing, are outweighed by the latter, the law may direct controllers (or processors) to stop or change the processing around that time, and I will consider ways of achieving this outcome.