Private Law Theory

ABSTRACT
This paper examines the absence of a Right to Be Forgotten (RTBF) in New Zealand law, combining doctrinal analysis with original empirical research. It opens with a comparative case study of a single New Zealand company – Profile Technology Ltd – whose data practices were investigated by regulators in both New Zealand and Canada, producing starkly divergent outcomes that expose the limitations of the New Zealand Privacy Act’s remedial framework. The paper traces the legislative genealogy of this gap to the 1980 OECD Privacy Guidelines, whose Individual Participation Principle conditioned erasure on a successful challenge to data accuracy – a limitation faithfully reproduced in the Privacy Act 2020’s Information Privacy Principle 7. Through a comparative analysis of the GDPR’s Article 17, Brazil’s LGPD, and the privacy laws of 19 US states, the paper demonstrates that the international trend has moved decisively beyond this original template. The paper then presents an empirical survey of the privacy statements of 40 of New Zealand’s largest companies. It finds that only 10% offer an unconditional right to request deletion, a further 23% offer a qualified right hedged with discretionary conditions, and 18% have no meaningful privacy statement accessible on their primary website. The paper concludes with a normative argument grounded in General Comment No. 16 of the Human Rights Committee, the ECtHR’s proportionality jurisprudence on Article 8 of the ECHR, and the European Court of Justice’s ruling in Google Spain, that commercial data retention in the face of an individual’s express request for deletion constitutes ‘arbitrary’ interference with the right to privacy under ICCPR Article 17, and that New Zealand companies should afford individuals a legitimate right to erasure.

Opland, Russell, The Right to Be Forgotten in New Zealand Business: An Empirical Survey of Corporate Privacy Practices (April 5, 2026).