CYIL vol. 12 (2021)

Ondrej Hamuľák – Lusine Vardanyan – Hovsep Kocharyan CYIL 12 (2021) example, freedom of expression and information, and does not refer to Article 11 of the EU Charter of Fundamental Rights (hereinafter – CFR). It means that the Court introducing in its judgment the right to be forgotten as a means of human privacy protection raises concerns about its balancing with freedom of expression and information. In this context some scholars have critically perceived the emergence of the phenomenon of the right to be forgotten in the European legal reality, considering it as an “unforgettable fiasco, (…) morphing into a nightmare for the web giant” 21 , “an emerging threat to media freedom in the digital age” 22 , “that threatens to censor entire swathes of the web” 23 . As E. Lee notes: “The EU right to be forgotten is a new privacy right (or a new application of privacy to Internet search engines) that has sparked great controversy around the world. The major concern among critics of the judgment is that it will lead to the censorship of information on the Internet by making it difficult, if not impossible, to find relevant articles associated with a person.” 24 The same position is held by E. Politou, A. Michota and others, claiming that: “[right to be forgotten] caused prolonged controversies due to its pivotal impact on current data processing procedures and its unavoidable conflicts with other rights such as the right to free speech and the freedom of information, especially in the era of big data and the Internet of Things (IoT)”. 25 As one can notice many of the complaints about freedom of expression and information are about the balancing of the rights and where the line is to be drawn. 26 The Court also speaks about the balance of private interests to protect their personal data and public interests to search for information related to the name of the personal data subject, but does not give any criteria for establishing such a balance, only noting that such a balance must be found in each specific case and will depend on the situation. At the same time the issue of territorial scope of Directive 95/46/EC 27 itself was also left open by the CJEU. For example, it is unclear whether the “right to be forgotten” applies only within the EU? Whether it applies to search engines running on the .com domain or other domains outside the EU as well? The criticism of the judgment in the Google Spain case mainly boils down to two competing aspects – the judgment infringes on media freedom and freedom of expression 21 WOHLSEN, M.: For Google, the ‘Right to Be Forgotten’ Is an Unforgettable Fiasco. 2014 . Available at: https:// www.wired.com/2014/07/google-right-to-be-forgotten-censorship-is-an-unforgettable-fiasco/. 22 See OGHIA, M. J.: Information Not Found: The “Right to Be Forgotten” as an Emerging Threat to Media Freedom in the Digital Age. CIMA Digital Report , January 9, 2018. Available at: https://www.cima.ned.org/ publication/right-to-be-forgotten-threat-press-freedom-digital-age/. 23 See SOLON, O.: EU ‘Right To Be Forgotten’ Ruling Paves Way for Censorship. 2014. Available at: http://www. wired.co.uk/news/archive/2014-05/13/right-to-be-forgotten-blog. 24 LEE, E.: The Right to Be Forgotten v. Free Speech. I/S: A Journal Of Law And Policy For The Information Society, 2015. vol. 12:1. p.110. Available at: https://kb.osu.edu/bitstream/handle/1811/80043/ISJLP_V12N1_085.pdf. 25 POLITOU, E., MICHOTA, A. et. al.: Backups and the right to be forgotten in the GDPR: An uneasy relationship . Computer Law & Security Review . 2018. vol. 34. issue 6. pp. 1247–1257. Available at: https://www.sciencedirect. com/science/article/abs/pii/S0267364918301389. 26 GEORGIADES, E.: Down the Rabbit Hole: Applying a Right to Be Forgotten to Personal Images Uploaded on Social Networks. Fordham Intellectual Property, Media and Enter, Media and Entertainment Journal . 2020. Volume 30 XXX Number 4, p. 1134. 27 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/31 (hereinafter, the “Directive” or “DPD”).

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