Lux In Arcana: Decoding the Right to Be Forgotten in Digital Archives

Abstract

On 13 May 2014, the European Court of Justice ruled that search engines such as Google had a duty to respect EU citizens’ right to be forgotten. That is, the search engines—deemed “controllers” of information under the Directive—were obligated in some circumstances to remove or de-list links from search results that pertain to information that infringes on an individual’s rights under the Directive. In the fall of 2015, the Spanish Supreme Court found itself obligated to determine the application of the digital right to be forgotten in a different context: This time in a digital newspaper archive. However, since the right to be forgotten is purely judicially-created and not yet memorialized in a regulation (other than through judicial interpretations of the European Directive 1995/46/EC of the European Parliament and Council of 24 October on the protection of individuals with regard to the processing of personal data and on the free movement of such data), it is therefore appropriate to analyze Spain’s recent Supreme Court ruling as an indicator of the future of the right. What does this decision mean for the future of the right to be forgotten?