The “Right to Be Forgotten”: Negotiating Public and Private Ordering in the European Union

Abstract

Although the Internet is frequently referred to as a global public resource, its functioning remains predominantly controlled by private actors. The Internet brought about significant shifts in the way we conceptualize (global) governance. In particular, the handling of “big data” by private intermediaries has a direct impact on routine practices and personal lives. The implementation of the “right to be forgotten” following the May 2014 decision of the Court of Justice of the European Union against Google blurs the boundaries between the public and the private, and extends the responsibilities of the latter to court-style decision making. This article analyzes the regulatory developments in this area and the implications of outsourcing of important governance practices to private intermediaries. It looks at the decision-making process for the “right to be forgotten” to illustrate the extent to which the hybridization of such procedures results in new arrangements between public and private ordering in Internet governance.

Negotiating Internet Governance

“…In practice, the CJEU judgment delegated to the company the case-bycase, human review of links for potential deletion, entrusting Google with a first decision on the matter; in case of dissatisfaction, the complaint could go to court, thus having the search engine's decision as a first step in a longer legal process. In the implementation of the 'right to be forgotten', Google acquired quasi-judicial powers, adjudicating on the display of personal information, which constituted the core of its business model (Chenou and Radu 2017). To comply with the court decision, Google opened an online delinking request form on 29 May 2014 and received 12,000 deindexing requests in the following 24 hours.…”

“…Soft regulation and self-regulatory tools also included significant references to rights, in particular at the level WSIS Decade & Public-Private Partnership Thirst of guiding principles. Going in the opposite direction, the CJEU decision against Google on the 'right to be forgotten' aimed at regulating dominant actors' behaviour in the market (Chenou and Radu 2017) by imposing an obligation on them to de-list information when requested to do so. This 'reversibility of authority' that Hall and Biersteker discussed back in 2002 was introduced via courts, but also via soft law.…”

“…(Barlow 1996) On the legal side, that translated into a pursuit of new regulations and 'cyberlaws' at the expense of adapting the existing legislation to tackle relevant online aspects. This approach has been revived several times throughout the 1990s and 2000s, going from a complete rejection of the applicability of 'old' laws (Post 2002) to designing exclusive online guarantees such as the 'right to be forgotten' (Chenou and Radu 2017). The development of an overarching governance system specific to the Internet continues to be an ideal for some of the members of the IG community.…”

Could You Ever Forget Me? Why People Want to be Forgotten Online

“…Unfortunately, there is little understanding of why people want to be forgotten, which must be the basis of this right’s design and implementation (De Hert et al 2018 ). It is hard to determine whether existing forms of implementation of the right to be forgotten reflect the voices of information providers because these forms are usually developed by information controllers (Chenou and Radu 2019 ). Explorations into determining the need and the right to be forgotten online are necessary to form specifications of this right.…”

Fighting the ‘Infodemic’: Legal Responses to COVID-19 Disinformation

“…These early actions enacted under a state of emergency carve new directions in negotiating the delicate balance between freedom of expression and censorship online, not least by involving intermediaries ( Chenou & Radu, 2017 ). Guidance issued by governments to large social media platforms targeting disinformation on coronavirus generally requested immediate action to take down or disable false or malicious content hosted on their platforms.…”