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2 | 2014 Volume 5 (2014) Issue 2 ISSN 2190-3387 Law and Electronic Commerce Information Technology, Intellectual Property, Journal of Articles

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2 | 2014 Volume 5 (2014) Issue 2 ISSN 2190-3387 Law and Electronic Commerce Information Technology, Intellectual Property, Journal of Articles 2 | 2014 Volume 5 (2014) Issue 2 ISSN 2190-3387 Law and Electronic Commerce Information Technology, Intellectual Property, Journal of Articles Oblivion, Erasure and Forgetting in the Digital Age by Aurelia Tamò and Damian George The Implementation of the Media Services Directive by National Regulatory Authorities: National Responses to Regulatory Challenges by Jenny Metzdorf A Qualitative Study on the Adoption of Copyright Assignment Agreements (CAA) and Copyright License Agreements (CLA) within Selected FOSS Projects by Sylvia F. Jakob Proportionality of Website Blocking: Internet Connectivity Providers as Copyright Enforcers by Pekka Savola Social Networking Sites’ Terms of Use Addressing Imbalances in the User-Provider Relationship through Ex Ante and Ex Post Mechanisms by Ellen Wauters, Eva Lievens & Peggy Valcke Book Review Sebastian Haunss, Conflicts in the Knowledge Society The Contentious Politics of Intellectual Property by Axel Metzger Editors: Thomas Dreier Axel Metzger Gerald Spindler www.jipitec.eu Lucie Guibault Miquel Peguera Journal of Intellectual Property, Information Technology and Table Of Contents Electronic Commerce Law Volume 5 Issue 2, September 2014 Articles www.jipitec.eu [email protected] Oblivion, Erasure and Forgetting in the Digital Age A joint publication of: by Aurelia Tamò and Damian George 71 Prof. Dr. Thomas Dreier, M. C. J., Karlsruhe Institute of Technology, Vincenz-Prießnitz-Str. 3, The Implementation of the Media Services Directive 76131 Karlsruhe by National Regulatory Authorities: National Prof. Dr. Axel Metzger, LL. M., Responses to Regulatory Challenges Institute for Legal Informatics, by Jenny Metzdorf 88 Leibniz Universität Hannover, Königsworther Platz 1, 30167 Hannover Prof. Dr. Gerald Spindler, A Qualitative Study on the Adoption of Copyright Dipl.-Ökonom, Georg-August- Assignment Agreements (CAA) and Copyright License Universität Göttingen, Agreements (CLA) within Selected FOSS Projects Platz der Göttinger Sieben 6, by Sylvia F. Jakob 105 37073 Göttingen Karlsruhe Institute of Technology, Leibniz Universität Hannover, and Proportionality of Website Blocking: Georg-August-Universität Göttingen Internet Connectivity Providers as Copyright Enforcers are corporations under public law, by Pekka Savola 116 and represented by their respective presidents. Editors: Thomas Dreier Social Networking Sites’ Terms of Use: Addressing Axel Metzger Imbalances in the User-Provider Relationship Gerald Spindler through Ex Ante and Ex Post Mechanisms Lucie Guibault by Ellen Wauters, Eva Lievens & Peggy Valcke 139 Miquel Peguera Board of Correspondents: Graeme Dinwoodie Christophe Geiger Ejan Mackaay Giovanni M. Riccio Book Review Cyrill P. Rigamonti Olav Torvund Sebastian Haunss, Conflicts in the Knowledge Society Mikko Välimäki The Contentious Politics of Intellectual Property Rolf H. Weber by Axel Metzger 152 Andreas Wiebe Raquel Xalabarder Editor-in-charge for this issue: Axel Metzger, Hannover Administrative Editor: Philipp Zimbehl Layout: Philipp Zimbehl ISSN 2190-3387 Funded by Oblivion, Erasure and Forgetting in the Digital Age Oblivion, Erasure and Forgetting in the Digital Age by Aurelia Tamò and Damian George Aurelia Tamò is a PhD Candidate, Chari of Information and Communication Law, University of Zurich Damian George is a junior associate at Nobel & Hug attorneys at law in Zurich Abstract: In light of the recent European be understood as a generic term, bringing together Court of Justice ruling (ECJ C-131/12, Google Spain existing legal provisions: the substantial right of v. Spanish Data Protection Agency), the “right to be oblivion and the rather procedural right to erasure forgotten” has once again gained worldwide media derived from data protection. Hereinafter, the article attention. Already in 2012, when the European presents an analysis of selected national legal Commission proposed a right to be forgotten, this frameworks and corresponding case law, accounting proposal received broad public interest and was for data protection, privacy, and general tort law as debated intensively. Under certain conditions, well as defamation law. This comparative analysis individuals should thereby be able to delete personal grasps the practical challenges which the attempt data concerning them. More recently – in light of to strengthen individual control and informational the European Parliament’s approval of the LIBE self-determination faces. Consequently, it is argued Committee’s amendments on March 14, 2014 – the that narrowing the focus on the data protection concept seems to be close to its final form. Although law amendments neglects the elaborate balancing it remains, for the most part, unchanged from the of conflicting interests in European legal tradition. previously circulated drafts, it has been re-labelled as It is shown that the attempt to implement oblivion, a “right of erasure”. This article argues that, despite erasure and forgetting in the digital age is a complex its catchy terminology, the right to be forgotten can undertaking. Keywords: Right to be forgotten, oblivion, erasure, privacy, data protection, defamation, autocomplete sugges- tions, notice and take down, EU data protection directive, data protection reform, data protection regulation, ECJ C-131/12 Google v. Spain © 2014 Aurelia Tamò/Damian George Everybody may disseminate this article by electronic means and make it available for download under the terms and conditions of the Digital Peer Publishing Licence (DPPL). A copy of the license text may be obtained at http://nbn-resolving. de/urn:nbn:de:0009-dppl-v3-en8. Recommended citation: Aurelia Tamò and Damian George, Oblivion, Erasure and Forgetting in the Digital Age, 5 (2014) JIPITEC 71, para. 1. A. Introduction memory of the Internet. Considering that digital abstinence is not an option, users are expressing an 1 1 Every individual has experienced episodes in his increased fear of being haunted by their digital past. life he enjoys remembering (and having others remember), and others that he would like to forget 2 The European Commission (EC) claims to have (or have others forget). As individuals increasingly recognized the problem and recently proposed a make frequent public use of the Internet, users have “right to be forgotten and erasure” as part of the revision of the 1995 European Data Protection become aware of the potential harm persistent 2 information can cause when stored on the eternal Directive (Directive 95/46/EC) principles. In light of the increased online activities and opaque privacy 2 71 2014 Aurelia Tamò and Damian George policies of web services, the EC wants to strengthen mostly used retroactively (ex post), data protection the control and digital rights of individuals. tries predominantly to guarantee the protection in Therefore, users should be given the right to have advance (ex ante) by considering the processing of their data fully removed.3 data as privacy infringing “by default” and therefore making processors adhere to data quality principles. 3 Legal scholars in Europe and the US have debated In other words, data protection law the implications of an online right to be forgotten. The first comprehensive approach in this regard was has introduced the default rule that the handling of personal taken by Mayer-Schönberger in his oeuvre “Delete”.4 data is per se an intrusion unless guiding principles were The concept of deletion has since been central to followed like the purpose limitation principle, the fairness the academic debate, which focuses on the legal, principle and other safeguards like a right of access to one’s own data. 9 philosophical and sociological foundations as well as potential implications of a policy response. 8 In the European Union, the processing of personal data must not only fulfil the guiding principles 4 In this article we approach the topic at hand from of data quality as provided for in Art. 6 Directive a European legal tradition perspective, leaving 95/46/EC but must also be legitimate. The criteria aside the US-American concepts in this respect. for making data processing legitimate are listed in Nevertheless it should be mentioned briefly that the Art. 7 Directive 95/46/EC. One important criteria is US has been rather critical of the concept of the right consent. However, despite consent being regarded as to be forgotten.5 In particular the implementation a promising tool, the reliance upon consent as a basis of the so-called “Eraser Law” (SB 568, California of justification for the processing of data through Business & Professions Code Sec. 22581) in California private parties has not been successful in providing was controversially discussed in the media.6 the intended self-control of the users.10 The EU’s data protection reform efforts strive – amongst 5 The focus of this article lies on interactions among other things – to increase the individual’s control private parties, omitting conflicts arising out of by clarifying, and possibly strengthening, its rights.11 government activities. We will elaborate throughout One of these reinforced rights is currently known this article that one should not restrict the debate under its original terminology, the “right to be to the legal provisions but must simultaneously forgotten”. Thereby, the EU attempts to strengthen draw insights from the elaborated case law. We will the individual’s self-determination12 with regard to support this approach by showing that European the processing of his personal data. Member States have dealt with questions relating
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