Forget me, forget me not - Redefining the boundaries of the right to be forgotten to address current problems and areas of criticism

Abstract

In the landmark decision Google Spain v AEPD and Mario Costeja González, the Court of Justice of the European Union has declared that individuals have a so-called ‘right to be forgotten’, that is, the right to demand search engines to erase search results obtained through searches for their names. The ruling has been praised by many and seen as a welcome relief for individuals who were gradually losing all control over the private information stored about them online. However, because the court has failed to provide proper guidance as to the application and scope of the new right, the ruling has opened risks to freedom of expression and the right to receive and impart information as well as introduced questions as to the legitimacy, fairness and international scope of the delisting process. Taking a closer look at the problems currently surrounding the right to be forgotten, this paper will attempt to narrow down and define the scope of the application of the new right. In order to do so, it will first argue that personal information should be predominantly protected by reliance on existing laws rather than through the creation of an ambiguous right to delist search results. It will then advocate for a rejection of the court’s broad formulation of the right to be forgotten and suggest that, in order to attain a fairer balance between the fundamental rights at stake, the right should be only permitted to apply in three, clearly defined and limited circumstances.