FINDING THE BALANCE: PROPORTIONALITY, GOOGLE SPAIN, AND THE RIGHT TO BE FORGOTTEN UNDER THE EU’S GENERAL DATA PROTECTION REGULATION

Abstract

With the EU’s trailblazing new data protection regulation (GDPR) coming into force in late 2018, the importance of data protection and privacy law has been amplified across the globe. Under the EU’s old data protection directive, however, a number of precedents, including the ‘right to be forgotten,’ will likely be impacted by the new regulation. While the European Court of Justice’s interpretation of this right under the old directive is particularly worrisome, the GDPR could facilitate the continuance of the right as it currently exists or alternatively, serve to narrow it. This article will demonstrate that while there is indeed a strong argument in favor of recognizing a legal ‘right to be forgotten,’ there is also a danger in striking an imbalance between an individual’s right to privacy on one hand, and the public’s right to information and freedom of expression on the other. While it is likely that the judgment will remain highly persuasive under the new GDPR, this paper will also examine additional protections built into the Regulation, as well as other practical limitations that could assist in keeping the right to be forgotten ‘in check’ moving forward.