THE ANGLO-AMERICAN/CONTINENTAL PRIVACY DIVIDE? HOW CIVILIAN PERSONALITY RIGHTS CAN HELP RECONCEPTUALIZE THE “RIGHT TO BE FORGOTTEN” TOWARDS GREATER TRANSNATIONAL INTEROPERABILITY

  • Karen Eltis
Keywords: public interest, Right to be forgotten, End of forgetting, Costeja, Equustek, Google, Transsystemic, Transnational, Interoperable, Procedural right, Property right, Personality right, Data controller, Censorship, Digital privacy, Freedom of expression, Continental privacy, Anglo-American privacy, European Data Protection Directive

Abstract

The European Court of Justice’s much maligned decision in Google v Costeja González, appears to compel search engines, to remove links to certain impugned search results at the request of individual Europeans (and potentially by others beyond Europe’s borders). Further complicating an already thorny situation is the Court’s failure to impart much-needed practical guidance in Costeja. What is more, Costeja may inadvertently and ironically have the effect of appointing (chiefly American) “data controllers” as unwitting private censors; arbiters of the European public interest. Indeed, the decision may be deemed a culmination of the growing divergence between Anglo-American and Continental approaches to privacy. It further reflects internal normative contradictions within the continental tradition and emphasizes the urgency of reconceptualizing digital privacy in a more transsystemically viable fashion, in Europe and beyond. In light of the above, informational privacy must ultimately be re-theorized in a manner that would presumably obviate—or at the very least palliate—the need for a stand-alone, ill-defined and under-theorized “right to be forgotten”, as set out at pains in Costeja. It is in essence a procedural right predicated on the impracticable idea that individuals “own” data, rather than a right to their identity itself and the perception thereof. It therefore fails to accord with the long-established civilian tradition of personality rights, which, unlike its common law counterpart, emphasizes personhood not property. In the end, a more robust construction of privacy, predicated on protecting identity, would allow for a more nuanced balancing of privacy and freedom of expression.

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Published
2016-12-01
Section
Articles