The new limits on the right to be forgotten in the legal system of the European Union: the difficult conciliation between economic freedoms and the protection of personal data

  • Mónica Martínez López-Sáez Universitat de València
DOI: https://doi.org/10.18543/ed-65(2)-2017pp139-176
Keywords: Right to be forgotten, fundamental right to data protection, personal data, Company registers, public access principle, limits to fundamental rights, Manni judgment.

Abstract

This paper focuses on and analyses the new developments of the right to be forgotten within the EU legal system through a classic but topical and timely theme, i.e. classic basic economic freedoms as a limit to fundamental rights. In the present study, these fundamental rights are none other than those recognized in Articles 7 and 8 of the Charter of Fundamental Rights of the EU, in relation to the aforementioned right to be forgotten. If, in the Google Spain SL judgment, the CJEU legitimized the emerging right to be forgotten, while establishing a number of limits to its exercise, both the adoption of the new European General Data Protection Regulation and the recent Manni judgment require clarification and an updated list of rights and limitations. In this light, the latter has the core of my analysis in this paper, confronting and balancing two competing interests: the exercise of the right to (digital) oblivion and the right to information (via the principle of public access, extrapolated from the legal certainty principle) by third parties, so as to guarantee a correct and harmonized commercial practice within the European internal market. The CJEU seems to opt for the second, making the proper development and functioning of the internal market, origin and one of the main objectives of the EU, prevail. In any case, the Manni judgment is also very relevant in discussing fundamental rights theory in the CJEU case-law vis-à-vis the weighing technique and the application of the principle of proportionality. The author of the present paper concludes that, although the CJEU approach is technically correct, it introduces significant weaknesses and raises difficulties that will need to be addressed in the near future. This is especially so when looking at the leading Google Spain SL judgment, enshrining a right to be forgotten and now the leading Manni judgment, establishing emerging limits, which undoubtedly raises questions and nuances, which will need to be resolved on a case-by-case basis.

Received: 22 June 2017
Accepted: 28 November 2017
Published online: 27 December 2017

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Author Biography

Mónica Martínez López-Sáez, Universitat de València

Investigadora predoctoral MECD-FPU

Published
2017-12-27
How to Cite
Martínez López-Sáez, Mónica. 2017. “The New Limits on the Right to Be Forgotten in the Legal System of the European Union: The Difficult Conciliation Between Economic Freedoms and the Protection of Personal Data”. Estudios De Deusto 65 (2), 139-76. https://doi.org/10.18543/ed-65(2)-2017pp139-176.
Issue
Vol. 65 No. 2 (2017)
Section
Studies

Last update: 08/02/2022

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