The right to be forgotten: The European Court of Human Rights in search of the necessary balance

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Author: Tigran Oganesian

Keywords: “the right to be forgotten”; European Convention on Human Rights; European Court of Human Rights; European Court of Justice; Google; Internet

Abstract

The right to be forgotten has become one of the answers to the challenges of the Internet, developed in an attempt to enable users to forget their past. This right was particularly emphasized in 2014 by the European Court of Justice in the Google Spain case. However, despite the primacy of the ECJ in recognizing the right to be forgotten, the ECtHR has developed a more extensive case law on balancing the right to respect for privacy with freedom of expression, setting criteria for solving the complex issue of finding the necessary balance. Updating the topic under study, the author emphasizes that if the competing rights are incorrectly balanced, the right to be forgotten can lead to unjustified censorship on the Internet. The solution of this complex issue will largely determine whether the right to be forgotten can become an international universal law. In this regard, the case-law of the ECtHR is analyzed, in which the criteria for determining the right balance between the right to be forgotten and freedom of expression are developed. It is noted that, on the one hand, the case-law of the ECtHR is inconsistent, and on the other hand, the right to respect for privacy can be rethought in the light of the interaction of the right to be forgotten and freedom of expression. The comparative analysis examines the factors that the ECtHR pays attention to when balancing the right to be forgotten with other competing rights. In particular, based on the analysis of the ECHR’s positions in the judgment in the case of Hurbain v. Belgium, it is noted that the applicants’ request for the right to be forgotten may be more likely to be satisfied if attention is focused on the anonymity of the article, rather than on its complete deletion (exclusion). The author’s attention is also drawn to the difference between the approaches of the ECJ and the ECtHR in finding a balance between the right to be forgotten and freedom of expression. It is noted that when balancing the ECtHR attaches particular importance to a factor like causing significant harm as a result of the publication of information. These and other differences may lead to uncertainty regarding the consistent interpretation of European legal norms governing the right to be forgotten. In the final part of the article, it is noted that the ECtHR should review the criteria for balancing that were applied earlier and improve them with respect to the right to be forgotten in the sense in which this right is now understood. Until uniform criteria for finding the necessary balance are formed, the right to be forgotten will continue to remain an “unpredictable” right.

About the author: Tigran Oganesian – Candidate of Sciences (Ph.D.) in Law, Associate Professor of the Department of International Law of the Diplomatic Academy of the Ministry of Foreign Affairs of Russia, Moscow, Russia.

Citation: Oganesian T. (2022) Pravo byt' zabytym: Evropeyskiy Sud po pravam cheloveka v poiskakh neobkho­dimogo balansa [The right to be forgotten: The European Court of Human Rights in search of the necessary balance]. Mezhdunarodnoe pravosudie, vol. 12, no. 1, pp. 32–56. (In Russian).

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