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Mantelero The right to be forgotten

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Mantelero The right to be forgotten

  1. 1. The Fifth Northumbria Information Rights Conference:Changing Notions of PrivacyGateshead, UK,1 May 2013The right to be forgotten and the media: anexisting balance. The European experience.Avv. Alessandro ManteleroAggregate Professor of Private Law at the Polytechnic University of TurinFaculty Fellow at the NEXA-Center for Internet & Society (PolytechnicUniversity of Turin)Visiting Fellow at the Oxford Internet Institute (University of Oxford)
  2. 2. A. Mantelero © 2013American scholars and companies expressed criticism about the “right tobe forgotten” (EU Proposal for a General Data Protection Regulation,Article 17)✔the right to be forgotten as a new right✔the right to be forgotten as a European concept✔the right to be forgotten as a significant limit to freedom of expressionThese comments disregard the entire European legal framework on theprotection of individuals, its historical evolution and the American case lawThe original idea of the right to be forgotten is pre-existing the EU Proposaland could not be considered a European concept and unknown inAmerican law.The right to be forgotten and the media: an existingbalance. The European experience.
  3. 3. A. Mantelero © 2013The European notion of the right to be forgotten draws its origins from droità l’oubli (France and European countries).In Europe the legal protection of the events of an individual life, bothprivate and public, developed in autonomy, and were not influenced by theNorth-American experience.The media affects private life in two different ways:✔by revealing events/information that should remain private✔by publicising events whose social/political relevance prevails over theirprivate natureThe droit à l’oubli represents a limit to media activities, forbidding pressand TV to make public, once again, aspects of private life that were theobject of public interest in the past.The notion of the right to be forgotten is based on the fundamental need ofan individual to determine the development of their life in an autonomousway.The right to be forgotten and the media: an existingbalance. The European experience.
  4. 4. A. Mantelero © 2013The right to be forgotten in the U.S.✔Melvin v. Reid✔Sidis v. F-R Publishing Corporation✔Briscoe v. Readers Digest Association, Inc.The US model✔wide interpretation of legitimate public concern✔broad interpretation of the newsworthiness privilege (First Amendment)✔emphasis on the offensiveness of published informationWe can not consider the right to be forgotten a corpus alienum in US lawand an exclusively European conceptThe right to be forgotten and the media: an existingbalance. The European experience.
  5. 5. A. Mantelero © 2013The right to be forgotten an the EU legislation✔Directive 95/45/EC (articles 6, 12)✔EU Proposal for a General Data Protection Regulation (article 17)Directive 95/45/EC (article 6)personal data should be✔collected for specified purposes✔“not further processed in a way incompatible with those purposes”✔kept in a form which permits the identification of data subjects “for nolonger than is necessary for the purposes for which the data werecollected or for which they are further processed”These rules are focused on the different parameters concerning the lengthof the time of retention and the processing purposes, which in the mediacontext should be adequately evaluated.The balance between the maintenance and the erasure of the data derivesfrom the legal boundaries defined by the courts in the case law concerningthe right to be forgotten.The right to be forgotten and the media: an existingbalance. The European experience.
  6. 6. A. Mantelero © 2013Directive 95/46/EC (article 12)✔a wider range of application (right to obtain the erasure)✔erasure due to data retention in contrast with the law or due to theoriginal or supervening lack of the reasons that legitimate the processingof information.EU Proposal for a General Data Protection Regulation (article 17)✔not a revolutionary change to the existing rules✔the article 17 recognizes “the right to obtain from the controller theerasure of personal data”, in a manner analogous to the Article 12 of theDirective 95/46/CE✔the article 17 is more analytical in defining the rightThe innovative aspect of the proposed rules does not regard the rightgranted to the individual, but the different rules concerning the extension ofthe protection offered in relation to the new electronic ways ofdisseminating information.The right to be forgotten and the media: an existingbalance. The European experience.
  7. 7. A. Mantelero © 2013There is an overlapping of concepts defining the right to be forgotten asthe right of the data subject to withdraw their consent to data processing.In cases concerning the droit à l’oubli a question regarding withdrawaldoes not existThe representation of the right to be forgotten as the right to have personaldata completely removed is consistent with the notion of droit à l’oubli, butit has a wider scope:✔the erasure is not only related to the loss of interest in past events, butalso to other situations (e.g. wrongful or illicit data processing) that do notconcern the balance between media and individual life.The article 17 of the proposed Regulation does not consider the right to beforgotten from the media perspective, as does the droit à l’oubli (explicitexception)The right to be forgotten and the media: an existingbalance. The European experience.
  8. 8. A. Mantelero © 2013The EU Proposal for a General Data Protection Regulation and the rootsof the “right to be forgotten”, Computer Law & Security Review, XXX, 2013(forthcoming)Alessandro Mantelerohttp://nexa.polito.it/people/amantelerohttp://www.oii.ox.ac.uk/people/?id=318http://staff.polito.it/alessandro.manteleroalessandro.mantelero@polito.it@manteleroThe right to be forgotten and the media: an existingbalance. The European experience.

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