Original scientific paper
https://doi.org/10.31297/hkju.17.2.1
Standards for Applying the Right to be Forgotten and the Temporality of Freedom of Expression in Spanish Case Law
Matija Miloš
orcid.org/0000-0002-3839-0273
; Assistant at the Chair of on Constitutional Law at the Faculty of Law, University of Rijeka, Croatia
Abstract
This paper strives to form a part of the broader debate on the potential threats which the right to be forgotten may pose to freedom of expression on the internet. To that end, it examines the relevant case law of the Spanish courts, which have had the opportunity to develop a substantial practice in applying the right to be forgotten to search engines. The paper begins by highlighting the main guiding standards of the right to be forgotten, the notion of harm, and the interconnected ideas of the “public” and its interest. This is followed by a discussion on the relationship between these standards and freedom of expression. In this respect, it is posited that the central standard is the “public” and its interest. In Spanish law, the right to receive accurate information has had a dominant impact in providing substance to this standard. Because this is only one aspect of the more general freedom of expression, this right is more likely to favour the processing of data that occurs in a context similar to journalism. By applying it in ‘right to be forgotten’ cases, a particular temporality of freedom of expression is introduced.
Consequently, the processing of personal data that can be justified by providing information in the interest of the collective existence of a political community is more likely to be immune to the right to be forgotten. Nevertheless, it is argued that the right to be forgotten does not pose a threat to freedom of expression. This is particularly so given that its impact is largely neutralised by its restricted field of application, making it effective only in relation to specific internet searches.
Keywords
right to be forgotten; freedom of expression; internet; proportionality; public interest; temporality
Hrčak ID:
183531
URI
Publication date:
27.6.2017.
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