Hugh McCarthy, ‘All the World’s a Stage: The European right to be forgotten revisited from a US perspective’

The Court of Justice (CJEU) ruling in Gonzalez v Google Spain has placed the ‘right to be forgotten’ at the centre of the global privacy debate. However, the decision leaves many questions unresolved, in particular the territorial scope of the ‘right to be forgotten’.

The Gonzalez decision thereby generates tension with other jurisdictions due to the potential for the extra-territorial application of EU law norms beyond its borders. This tension is especially palpable in jurisdictions that are less than receptive to the principles underlying the ‘right to be forgotten’. In this respect, the Gonzalez decision is a discrete symbol of the disparity between the judicial approaches to privacy, data protection, reputation and freedom of expression under the respective American and EU constitutional systems. Although there are several fields of common ground between the EU and US at the intersection of these fundamental rights, it cannot be said that the ‘right to be forgotten’ is one of them. It is apparent that the body of First Amendment jurisprudence stands as an insurmountable obstacle to the implementation of an EU-style ‘right to be forgotten’ in the US.

With the imminent codification of the ‘right to be forgotten’ in the EU’s General Data Protection Regulation, it appears that the two jurisdictions will end up ‘shadow-boxing on different plains’ when it comes to the ‘right to be forgotten’. As a consequence of these differences and the resulting regulatory disparity, informational asymmetries will probably emerge between the US and EU – and potentially other jurisdictions – as the ‘right to be forgotten’ is implemented elsewhere.

Hugh J McCarthy, All the World’s a Stage: The European right to be forgotten revisited from a US perspective. Journal of Intellectual Property Law and Practice (2016) 11 (5): 360-371, doi: 10.1093/jiplp/jpw026.

First posted 2016-07-07 08:22:00

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