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Cited by 41Digitalization, Law, and RegulationFreedom of Expression and DefamationEuropean and International Contract Law

The right to be forgotten in the light of the consent of the data subject

Open access
Bartolini, Cesare, Siry, Lawrence·2016·Computer Law & Security Review
DOI 10.1016/j.clsr.2016.01.005
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Abstract

Recently, the Court of Justice of the European Union issued decision C-131/12, which was considered a major breakthrough in Internet data protection. The general public welcomed this decision as an actualization of the controversial “right to be forgotten”, which was introduced in the initial draft for a new regulation on data protection and repeatedly amended, due to objections by various Member States and major companies involved in massive processing of personal data. This paper attempts to delve into the content of that decision and examine if it indeed involves the right to be forgotten, if such a right exists at all, and to what extent it can be stated and enforced.

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Crossref · 10.1016/j.clsr.2016.01.005

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  • The GDPR anticipates a right to withdraw (revoke) consent, which was missing from the DPD.

    “Notwithstanding this deficiency, the GDPR anticipates for a right to withdraw (revoke) consent, a fact that has been warmly applauded since this explicit reference to the right to withdraw consent was missing from the DPD [73,92].”

    From Forgetting personal data and revoking consent under the GDPR: Challenges and proposed solutions (2018) · cites this paper as [92]

  • The Google Spain judgement does not create a RtbF, as the CJEU could not enforce a right that does not exist in the current legislation, but simply applies the RtbF which was already present (although not explicitly mentioned) in the existing legal framework, extending the lawfully published information right and the right to object.

    “Yet, contrary to general impression, it has been pointed out by many scholars [112,133,92] and the Commission itself that the Google Spain judgement does not create a RtbF, as the CJEU could not enforce a right that does not exist in the current legislation, but simply applies the RtbF which was already present (although not explicitly mentioned) in the existing legal framework, extending the law”

    From Forgetting personal data and revoking consent under the GDPR: Challenges and proposed solutions (2018) · cites this paper as [92]

  • According to extended legal analysis, the RtbF is a novelty and has a broader scope than any of the existing rights, and its unique feature is its retro-activity.

    “According to extended legal analysis [52,92], the right is a novelty and has a broader scope than any of the existing rights whereas its unique feature, which makes it different from the rights granted by the existing legislation, is its retro-activity.”

    From Forgetting personal data and revoking consent under the GDPR: Challenges and proposed solutions (2018) · cites this paper as [92]

  • In 2014, the CJEU tried to tackle the need for forgetting through the Google Spain decision which forced Google to take down harmful personal information from its search results.

    “Amidst the social and philosophical discussions on the criticality of forgetfulness in digital era, in 2014 the Court of Justice of the European Union (CJEU) tried to tackle the need for forgetting through the infamous Google Spain decision which forced Google to take down harmful personal information from its search results [133,92].”

    From Forgetting personal data and revoking consent under the GDPR: Challenges and proposed solutions (2018) · cites this paper as [92]

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10 of the 69 references couldn’t be matched to a known paper.

Research works printed but not linked: 15

  1. Burden K. EU update. Comput Law Secur Rev 2015;31(1):139-45.
  2. di Cassazione C. III sezione civile. Sentenza 9 Aprile 1998, N. 3679. Il Foro Ital 1998;121(6):1833/1834-39/1840.
  3. Dubois P-A. Search engines and data protection -a welcome practical approach by the advocate general. CTLR 2013;19(7):206-8.
  4. Geiger A. Die einwilligung in die verarbeitung von persönlichen daten als ausübung des rechts auf informationelle selbstbestimmung. NVwZ 1989;8(1):35-7.
  5. Kelsey E. Google Spain SL and Google Inc v AEPD and Mario Costeja Gonzalez: protection of personal data, freedom of information and the 'right to be forgotten'. Eur Hum Rights Law Rev 2014;4:395-400.
  6. Kranenborg H. Google and the right to be forgotten. EDPL 2015;1(1):70-9.
  7. Kulk S, Zuiderveen Borgesius FJ. Google Spain v. González: did the court forget about freedom of expression? Eur J Risk Regul 2014;3:389-98.
  8. Messinetti D. Circolazione dei dati personali e dispositivi di regolazione dei poteri individuali. Riv Crit Dir Priv 1998;16(3):339-407.
  9. Peron S. Il Diritto All'oblio Nell'era Dell'informazione On-Line. Resp Civ Prev 2014;4:1177-91.
  10. Popovici A. Personality rights -a civil law concept. Loyola Law Rev 2004;50(2):349-58.
  11. Prosser WL. Privacy. Calif Law Rev 1960;48(3):383-423.
  12. Rallo Lombarte A. El Derecho Al Olvido Y Su Protección. Telos 2010;85:104-8.
  13. Resta G, Zeno-Zencovich V, editors. Il Diritto All'Oblio Su Internet Dopo La Sentenza Google Spain, vol. 3. Consumatori E Mercato. Roma TrE-Press; 2015.
  14. Robbers G. Der grundrechtsverzicht. zum grundsatz 'volenti non fit iniuria' im verfassungsrecht. JuS 1985;25(12):925-31.
  15. Rodotà S. Elaboratori elettronici E controllo sociale, vol. 2. Quaderni dell'Irsta. Strada Maggiore 37, 40125 Bologna, Italy: Il Mulino; 1973.

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Authors
Bartolini, C., & Siry, L.
Affiliations
University of Luxembourg (LU)
Corresponding author
  • Bartolini, Cesare
  • Siry, Lawrence
ORCID
Venue
Computer Law & Security Review
Publisher
Elsevier BV
Published
2016-04
Volume
32
Issue
2
Pages
218-237
ISSN
2212-473X (ISSN-L)
DOI
10.1016/j.clsr.2016.01.005
OpenAlex
W2280446908
Cited by
41
References
69
Citations by year
2025: 1 · 2024: 2 · 2023: 1 · 2022: 1 · 2021: 3 · 2020: 19 · 2019: 2 · 2018: 7 · 2017: 4 · 2016: 1
FWCI
50.53
Type
journal article
Language
en
Open access
Licence
Locations
  • Computer law & security review (publishedVersion, public-domain)
  • Open Repository and Bibliography (University of Luxembourg) (submittedVersion, public-domain)
Topics
  • Social Sciences › Law › Digitalization, Law, and Regulation
  • Social Sciences › Law › Freedom of Expression and Defamation
  • Social Sciences › Law › European and International Contract Law
Keywords
right to be forgotten, Court of Justice of the European Union, personal data protection, search engines, search engine results, GDPR, data subject rights

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