CYIL vol. 12 (2021)

CYIL 12 (2021) THE GLOBAL REACH OF THE RIGHT TO BE FORGOTTEN THROUGH THE LENSES … question of ensuring the privacy protection of the data subject, giving him/her a carte blanche to protect his/her privacy in conditions when “the Internet never forgets”. 15 As S. Alessi righty argues: “Once information is uploaded, the Internet stores it permanently, in what has been called “digital eternity.” Hence, when personal information is uploaded online, our most embarrassing or painful moments may acquire lasting significance and haunt our lives. The Internet is an integral part of our lives to collect information, manage finances, socialize, and shop. Thus, it risks infringing upon individuals’ right to privacy”. 16 In turn, J. Rosen also argues that: “(…) the right to be forgotten addresses an urgent problem in the digital age: it is very hard to escape your past on the Internet now that every photo, status update, and tweet lives forever in the cloud”. 17 However, despite the apparent progressiveness of the Google Spain judgment in the field of the EU human rights protection, it nevertheless gave rise to many problems that need to be solved and thus determined the trend of further development of the case law of CJEU in the field of digital rights. In this context R. Weber rightly notes that: “a clearer picture of the actual objective of a new fundamental right is necessary. The proclamation of a right to be forgotten as such does not suffice. It recalls the myth of Pandora’s box: Impelled by her natural curiosity, Pandora opened the box and all the evils contained in it escaped”. 18 In this context naturally arises the question about what are the main issues that flow out of the Google Spain judgment? This question is correctly answered by O. Gstrein, who notes that there are three questions that remained without response in the judgment of the Google Spain case, in particular: 1) the lack of direct legal supervision and transparency for the procedure of removal of personal information; 2) the content publisher’s right to be heard and 3) the territorial scope of the application. 19 At the same time, when analysing the issue of fundamental rights, the CJEU refers only to its own case law and ignores the judgments of other jurisdictions. The CJEU did not accept the position of the Advocate General (hereinafter – AG), who insisted on finding a reasonable proportional balance between the protection of personal data and the rights of the information community, as well as the legitimate interests of Internet operators and Internet users in general. 20 The Court ignored references to the European Convention on Human Rights and Fundamental Freedoms (hereinafter – ECHR) and the case-law of the European Court of Human Rights (hereinafter – ECtHR), which creates the risk that the same rules of law will be interpreted differently by different jurisdictions. The Court emphasizes that individuals have the right to request the removal of their personal data from search results, but does not mention, for 15 CROCKETT, M.: The Internet (Never) Forgets. 19 SMU Sci. & Tech. L. Rev. 151 . 2016. Available at: https:// scholar.smu.edu/scitech/vol19/iss2/4. 16 ALESSI, S.: Eternal Sunshine: The Right to Be Forgotten in the European Union after the 2016 General Data Protection Regulation . Emory International Law Review . 2017. Vol. 32. Available at: https://law.emory.edu/ eilr/_documents/volumes/32/1/alessi.pdf. 17 ROSEN, J.: The right to be forgotten . Stanford Law Review Online. 2012. Vol. 64:88 . Available at: https://review. law.stanford.edu/wp-content/uploads/sites/3/2012/02/64-SLRO-88.pdf. 18 WEBER, R.: The Right to Be Forgotten: More Than a Pandora’s Box? 2012. Available at: https://www.jipitec. eu/issues/jipitec-2-2-2011/3084. 19 GSTREIN, O.: The Judgment That Will Be Forgotten: How the ECJ Missed an Opportunity in Google vs CNIL (C-517/17). 2019. Vefassungsblog. Available at: https://verfassungsblog.de/(…)t-will-be-forgotten/. 20 See Opinion of Advocate General Jääskinen delivered on 25 June 2013, Case C‑131/12 Google Spain SL Google Inc. v Agencia Española de Protección de Datos (AEPD) Mario Costeja González , ECLI:EU:C:2013:424, para. 31. Available at: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62012CC0131.

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