We noticed that the blog on the ‘Right to be forgotten…’ takes a comparative approach in discussing the balancing of competing rights. This made it an even more interesting read. We will now go on to comment on several points raised below.
Firstly, the blog makes a prudent analysis of the EU’s jurisprudence and astutely comments on how these have furthered the conceptualisation and advancement of how the right to erasure is to be understood and acknowledges the fine manner by which they have made these analyses in a comparative manner. It is interesting that they are in general agreement with the case law and take a pragmatic approach to the competing rights, diplomatically calling it a draw between the two values, which they agree that the EU’s jurisprudence has correctly articulated.
Secondly, by highlighting the right to be forgotten versus the right to freedom of expression, the blog reminded us of the broader debate around competing rights which was discussed in our first and second lecture (see the articles by Solove’s [2006] and Fuster [2014] for reference). The reality is that several privacy rights would often have to be balanced against other competing rights and interests. Sometimes, the balance will tilt in favour of privacy and other times it will not. As the blog highlighted, the decision in the Google Spain [2014] case noted the limits to the right to be forgotten. This reminds us of the comment Dr Veale made in Lecture 5 on the right to erasure. He suggested that the right to erasure should be narrower than it currently is.
Lastly, the comparative approach adopted in this blog is worthy of some further comments. It is interesting to see how different jurisdictions are likely to have different approaches to the balancing act between privacy and other competing rights. As the blog pointed out, this could be based on the values which such jurisdictions put more weight on. The blog gives the examples of the prevailing US and EU values and how this affects the treatment of data protection in those jurisdictions. This contrast takes us down memory lane to Lecture 2 when we discussed ‘The Emergence and Structure of Data Protection’. While we acknowledge that the Omnibus and Sectoral regimes appear to be two contrasting ends of a pole, Lynskey highlighted the nuances of their practical applications make the contrast less obvious. We wonder if Lynskey’s suggested ‘extraterritorial impact of the EU regime’ will by any chance rob off on the USA in a significant way.
In conclusion, we loved the simplistic and easy-to-understand style of writing adopted in the blog. The authors highlighted some interesting conflicts between rights and jurisdictional approach. We hope this comment has done justice in responding those issues by drawing on the knowledge gained in lectures thus far.