The right to be forgotten : no solution to the challenges of the digital environment

The right to be forgotten was introduced into the EU with great passion and enthusiasm as a new dawn in privacy protection on the Internet. This thesis challenges this and argues that the current drafting of the right to be forgotten found in the Regulation is a partial solution only. It argues that Article 17, which empowers private businesses to remove content from the Internet is a step that must be exercised with caution. This thesis explores current understandings of privacy and discusses the value privacy has to individuals and societies while examining how this is changing under ever-growing Internet culture. This thesis contains a comparative assessment of privacy protection offered in Canada and New Zealand and discusses how the right to be forgotten goes far beyond what is currently being offered in these chosen jurisdictions. Using the decision of Google Spain the thesis illustrates how continued application of the right to be forgotten will create real problems for fundamental human rights such as freedom of expression and privacy on the Internet. This thesis highlights 3 key problems created by the right to be forgotten as presenting a real risk of Internet censorship, devaluing privacy, and a complete absence of a unified jurisdiction to enforce the Regulation. This thesis argues that such problems cannot be overlooked as they risk damaging the much celebrated openness and freedom of the Internet. As an answer to the highlighted problems, this thesis proposes amendments to the Regulation that will temper the current inadequacies found in the right to be forgotten. This thesis proposes amending the Regulation to introduce a co-regulatory corporate social responsibility regime that can promote transparency and due process within any right to be forgotten request. It also proposes including a remedial process within any right to be forgotten request to ensure fundamental human rights are not overlooked by private business. Finally, this thesis proposes amending the right to be forgotten to include a re-shaped reasonable expectation of privacy assessment that will ensure the right to be forgotten aligns with how individuals perceive and value privacy on the Internet