CYIL vol. 12 (2021)

CYIL 12 (2021) THE GLOBAL REACH OF THE RIGHT TO BE FORGOTTEN THROUGH THE LENSES … for the EU far beyond its borders. Of course, one can considers it as an advantage, but we tend to believe that this is a disadvantage if we take into account that the CJEU’s judgments, which are “aimed” at extending their rules to the global digital order, nevertheless do not have “coercive force”. This means that making judgments that are not destined to become a reality can significantly reduce the credibility of the CJEU itself. Life in today’s global digital society does not recognize national borders, primarily because of the “extra-territorial” nature of information and the Internet itself, and the legal regulation of this sphere must unavoidably take this fact into account. Otherwise, the application of this right exclusively on the territory of the EU will not make any sense. In paragraph 72 of the CNIL case, the CJEU itself acknowledged that the Union-wide exclusion of search results may not be sufficient to protect privacy rights in some cases. And this consideration implies the need to extend the EU right to data protection beyond the EU as well. This could be an ideal opportunity for the EU to justify extending its law outside the EU. As pointed out by Ch. Kuner: “the globalised environment of the internet, shaped by a combination of hard law from multiple jurisdictions and private soft law, is the ideal benchmark for the ambitions of EU law”. 86 But the CJEU, while supporting the possibility of a global application of the right to be forgotten, does not offer anything new. Even before the ruling on the Google Spain case some jurisdictions, for example such as Russia, Mexico, Brazil and so on, have started granting the application of the similar right. Therefore, this can be considered quite an expected approach; we can say support for the global trend. If only the local application of the right to be forgotten is recognized by the CJEU it means the ignoring of this fact. Nevertheless, the extraterritorial application of the EU Data Protection law poses a number of problems. The adoption of national data protection standards outside the boundaries of EU jurisdiction may conflict with the obligations of the international comity and the need to respect the diversity of existed legal systems. In fact, the balance between the right to be forgotten, freedom of information, and freedom of speech is established differently in jurisdictions, even if States recognize faith in democracy, the rule of law, and human rights. Moreover, the application of data protection standards outside the borders of the EU’s jurisdiction may eventually be negated by the opposite requirements that are established in other jurisdictions. 87 That is why some scholars recommend to the EU lawmakers that they not extend the scope of this right beyond the EU. 88 Another constraint on the global application of the right to be forgotten in particular and the EU data protection law as a whole may be the principle of international comity, 6. The need to find a balance between global and local approaches to the right to be forgotten 86 KUNER, CH.: The Internet and the Global Reach of EU Law. University of Cambridge Faculty of Law Research Paper No. 24/2017. SSRN Electronic Journal . April 2017. 87 See FABBRINI F., CELESTE E.: The Right to Be Forgotten in the Digital Age: The Challenges of Data Protection Beyond Borders. German Law Journal . 2020. Volume 21, Issue S1, p. 55–65. Available at: https:// www.cambridge.org/core/journals/german-law-journal/article/right-to-be-forgotten-in-the-digital-age-the- challenges-of-data-protection-beyond-borders/3E3E182352F1AD555CBB788E2380E23F. 88 PIRKOVA E., MASSÉ E.: EU Court decides on two major “right to be forgotten” cases: there are no winners here. 23 October 2019. Available at: https://www.accessnow.org/eu-court-decides-on-two-major-right-to-be- forgotten-cases-there-are-no-winners-here/.

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