Hiding in Plain Sight? The “Right to Be Forgotten” and Search Engines in the Context of International Data Protection Frameworks

Krzysztof Kornel Garstka and David Erdos:

In the wake of the Google Spain (2014) and debate on the “right to be forgotten”, now included in the new General Data Protection Regulation (GDPR), it has become widely recognised that data protection law within the EU/EEA grants individuals a qualified right to have personal data relating to them deindexed from search engines. At the same time, however, this outcome has at times been conceptualised as a uniquely EU/EEA phenomena, perhaps even resulting from one idiosyncratic CJEU judgment. This paper questions such a conceptualisation. Through an analysis of five major extra-EU/EEA international data protection instruments, it argues that most of these could on a reasonable interpretation be read as supporting a Google Spain-like result. Further, and in light of the serious threats faced by individuals as a result of the public processing of data relating to them, it argues that the time is ripe for a broader process of international discussion and consensus-building on the “right to be forgotten”. Such an exercise should not be limited to generalised search engines (which undoubtedly raise some uniquely challenging interpretative conundrums within data protection), but should also encompass other actors including social networking sites, video-sharing platforms and rating websites.