Workshop on the Legal Aspects of the 'Right to be Forgotten'
9 April 2013, Moller Centre, Cambridge
The Data Protection Regulation proposed in January 2012 by the European Commission would introduce a ‘right to be forgotten’ into European data protection law. There has been lively discussion about the legal nature of the right to be forgotten, its relationship to other rights and interests, and its implications for society and for the Internet. Bringing together a select group of academic experts, this workshop organised by the CELS explored the legal issues (particularly those under European Union law) of the proposed right.
Summary of Main Points
The Data Protection Regulation proposed in January 2012 by the European Commission would introduce a ‘right to be forgotten’ into European data protection law. There has been a lively discussion about the nature of the right to be forgotten, its relationship to other rights and interests, and its implications for society and the Internet. Bringing together a select group of academic experts in law and information technology, the Centre for European Legal Studies of the University of Cambridge organized a workshop to explore the relevant legal issues.
The following is a summary of the main points and questions raised during the workshop:
Session 1: Nature of the right to be forgotten
- The roots of the right to be forgotten reach back into national laws allowing the deletion of convictions or suspicions from a person’s criminal record after a certain amount of time has passed (the so-called ‘right to oblivion’), some of which date back to previous centuries. However, such laws do not fulfill the same purpose as does the right to be forgotten.
- Basic principles taken from fundamental rights law (such as the principle of proportionality) are key to interpreting and understanding the right to be forgotten. It is however unclear whether such concepts should be interpreted positively (e.g., whether there should be an assumption that data should be deleted after a certain length of time), or whether these determinations should be made on an ad hoc basis.
- There was detailed discussion of the technical logistics of how this could be achieved and the relevant responsibilities of search engines and publishers of the information.
Session 2: Relationship with other rights and legal instruments
- The European Commission proposal does not sufficiently address important questions about the relationship between the right to be forgotten and other important interests such as historical research, journalism, and freedom of expression. Such questions cannot be resolved solely through the issuance of delegated acts by the Commission.
- There is tension between the status of data protection as a fundamental right and under the Lisbon Treaty and the limitations placed on it under the right to be forgotten.
- An analysis based on a balancing of rights and interests indicates that data should be subject to a right to be forgotten from the point in time when the gain in having the data be public is outweighed by the loss or harm caused by a violation of privacy; however, in practice this point is difficult to anticipate.
- It is difficult to decide which parties should be responsible for carrying out a proportionality (balancing) analysis under the right to be forgotten. Having data controllers do so may raise issues of legitimacy, while having courts or regulatory authorities do so can lead to fragmentation and conflicts of interest. There will also be a need for a constant re-evaluation of such an analysis.
- In civil law countries, data protection authorities have a legal duty to investigate each case brought to them and cannot be selective in responding to complaints. This could lead to the authorities being deluged by cases involving the right to be forgotten.
- The lack of harmonization of concepts fundamental to the right to be forgotten (such as what constitutes an “establishment” of a data controller), and of applicable law rules, will likely lead to forum shopping and different national interpretations of the right.
Session 3: Right to be forgotten between expectation and practice
- There has been a failure to evaluate the historical experience of similar rights (see above under Session 1). More empirical evidence is needed in order to determine how the right to be forgotten could function in practice.
- In a technical sense, perfect deletion of data in the Internet is next to impossible, unless the physical media that store the data are destroyed. Adding to the difficulty of ensuring data deletion is the fact that they are usually mirrored or copied elsewhere. However, using technology to obfuscate data, to make them inaccessible, or to control access to them, could be possible. Provable deletion would also be easier for data in which individuals have more “social capital” invested (e.g., medical or financial data).
- The right to be forgotten is easier to implement and more justifiable in relation to data that an individual has consented to place in the Internet.
- Innovative technical measures could be developed to cope with some of the issues raised by the right to be forgotten (e.g., so-called “temporal relevance”, or ranking search results lower as they get older). This sort of “temporal drift” also occurs in the offline world (e.g., a person may choose not to write down certain names when they transfer information to a new address book).
- There has been “function creep” in the increased governmental storage of and access to personal data, which raises questions about the functioning of the right in the context of governmental data processing.
- There is a case to be made for measures in law and policy to make data holders consider carefully why they are storing personal data, since there is no technical solution to data deletion that is completely satisfactory.
- Innovative schemes such as personal data stores could be helpful in giving individuals more control over their data.
Pringle and the Future of European (Financial) Integration
On 8th March 2013, the Centre for European Legal Studies (CELS) organised a workshop on one of the most significant cases heard in the Court of Justice of the European Union. The informal colloquium sought to exchange ideas between younger and more seasoned European lawyers.
The so-called Pringle case (Case C-370/12) was decided on the 27th November 2012, and its consequences are expected to shape the future of European (financial) integration for years. Based on the preliminary reference by the Irish Supreme Court, all 27 Court of Justice judges were called to answer questions about the legality of the European Stability Mechanism Treaty (ESM Treaty). While some commentators doubted the legality of ESM actions outside the EU framework, the Court resoundingly rejected this challenge and arguably opened up further avenues to achieve greater fiscal and economic integration for Euro countries. While the financial crisis and the stability of the Eurozone were at the heart of this judgment, it is expected to have far greater significance for the future of European integration in general and for the future of the UK in the EU in particular.
This seminar explored the legal lessons and consequences of this judgment. Recordings of some of the presentations are available below:
Professor Alan Dashwood CBE QC, and Dr Markus Gehring: "Introduction to the Pringle case and legal issues which arise from a separate Treaty"
Professor Simon Deakin: "Economic and monetary policy after Pringle"
Professor Christian Calliess: "Pringle – the German response and the ESM legality"
Dr Michael Waibel: "Assessment of the Court’s response to a political question"
Scottish Independence: The EU and International Law Perspectives
On 26th February, Professor James Crawford, joint author of HM Government's 'Opinion: Referendum on the Independence of Scotland - International Law Aspects' engaged in a debate with Dr Markus Gehring and Dr Michael Waibel, introduced by Professor Catherine Barnard. The debate discussed the EU and International Law aspects of Scottish independence, as considered in the Opinion.
The opinion can be found on the Government website at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/79408/Annex_A.pdf
More information can be found on the Faculty of Law news pages.
Running time: 27:20
Other formats of this video, and also audio, are also available on the University Streaming Media Service.
Brown Bag Lunch
Professor Peter Kunzlik (City University, London) gave a brown bag lunch on Thursday 21st February in B16 from 1-2pm. Professor Kunzlik has been involved in various activities at the European Parliament and as a consultant to the Swedish Government's Public Procurement Inquiry with regard to the Commission's current proposals for new public procurement directives, and delivered a talk on this subject.
CELS Lunchtime Seminar
Judy Fudge, Lansdowne Chair in Law, University of Victoria, delivered (in addition to the usual CELS lunchtime series) a seminar entitled "From Women and Labour Law to Putting Gender and Law to Work". The talk took place on Thursday 14th February at 1pm in the Faculty of Law. A recording is available on the University Streaming Media Service.
Energy Infrastructure Projects and Environmental Assessment Procedures: Options and Challenges Workshop
Co-organised by CELS and the European Commission
On the 19th October 2011 the European Commission proposed a Regulation on Guidelines for trans-European Energy infrastructure to be adopted by the European Parliament and the Council and repealing Decision No 1364/2006/EC [Ref. COM(2011) 658 final]. The proposed Regulation lays down rules for the timely development of trans-European energy networks and identifies 12 strategic priority corridors and geographic areas for energy infrastructure with a trans-european /cross border dimension. A key point in the Commission's proposal is the streamlining of permit granting procedures and the reduction of administrative burdens for the implementation and development of the energy infrastructure projects in order to significantly reduce their duration.
Jointly organised by CELS and the European Commission this workshop discussed the question of streamlining environmental assessment and permit procedures for priority energy infrastructure projects and addressed the challenge of meeting the simplification and time-reduction requirements imposed by the Regulation with the need to ensure respect for environmental concerns, preserve the quality of the environmental impact assessment process, and achieve "the highest possible standards of transparency and public participation for all relevant issues in the permit granting process for projects of common interest".
The workshope took place at the Faculty of Law on the 18th January 2013. A copy of the programme can be found here: Workshop Programme.
A report on the workshop can be found here: Workshop Report.
CELS Brown Bag Lunch
(For staff and graduate students only)
Professor John C Dernbach (Environmental Law Centre, Widener University) delivered a brown bag lunch entitled "Sustainability and Law: Turning Risks into Opportunities", Thursday 15th November 2012. During his presentation Professor Dernbach summarised the basic themes of his most recent book on sustainability in the United States. His presentation emphasised the role of law, lawyers, and faculties of law.
His new book, "Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability" (Environmental Law Institute Press), was published in June. It describes U.S. efforts over the past two decades, explains what has motivated the progress that has been made, identifies obstacles, and recommends an approach for accelerating progress and overcoming obstacles. Prof. Dernbach was assisted in this book by 51 contributing authors, each an expert in a particular facet of sustainability. This is the third book in his ongoing project evaluating U.S. sustainability efforts.
The Corpus Juris Project (Festival of Ideas)
Professor John Spencer gave a talk as part of the University of Cambridge's Festival of Ideas. The talk, entitled "The Corpus Juris Project", explored the Corpus Juris Project and the ideas and debate surrounding its downfall. The talk took place at the Law Faculty at 10am on Saturday 27th October 2012.
CELS Evening Lecture
Eleanor Sharpston QC, Advocate General at the Court of Justice of the European Communities gave an evening lecture entitled "Squaring the Circle - Fighting Terrorism Whilst Respecting Fundamental Rights?".
A recording of this lecture is available for members of the University (Raven Authentication) on the University's Streaming Media Service.
Conference on "Children's Evidence in Legal Proceedings" - April 2012
In 2009 Stephen Barker was convicted of rape on the evidence of a little girl - aged four and a half at the trial - and three and a half when first interviewed by the police. The high point of the proceedings – as prominently reported in the media – was the child’s appearance as live witness at the trial. The case focussed attention on the need, imposed by English law as it presently stands, for even tiny children to come to court for a live cross-examination if there is to be any chance of convicting a person who has abused them. This requirement has grave disadvantages: for the child, for the defendant, and for justice.
In 1989 an official committee, the Pigot Committee, proposed a mechanism designed to avoid these difficulties, under which the whole of a young child’s evidence, cross-examination and all, would take place out of court, and in advance of the trial. Though welcomed in many quarters, the idea generated opposition too, and in England and Wales it was never carried out. However, the proposal has been implemented in Western Australia, and (nearer home), similar schemes are now in operation in a number of European jurisdictions.
This conference brought together speakers from several parts of the world where the Pigot scheme, or something like it, is in operation, and explained how far (if at all) it really enables the difficulties of cross-examining very young children to be solved.
The conference was organised by Professor John Spencer, who has written extensively on the problems of children’s evidence, and Professor Michael Lamb, (Professor of Psychology, Cambridge Department of Social and Developmental Psychology) who has worked extensively on issues related to the questioning of children.
The proceedings of this conference have now been published in a book entitled "Children and Cross-Examination" by Hart Publishing.
The Advocate General: Securing Trust and Democracy in the EU Judicial Order - October 2011
This one day conference, jointly organised by CELS, University of Cambridge and the School of Law, University of Leeds took place at the Faculty of Law.
Many of the papers relating to this conference are due to be published in the next issue of the Cambridge Yearbook for European Legal Studies (Volume 14) by Hart Publishing.
Evening Seminar- October 2011
Trevor Philips, Chair of the Equality and Human Rights Commission, gave an evening lecture entitled "Equality: Has the Law run out of road?".
Brown-bag Seminar (For Staff and Research Students) - June 2011
Dr Paul Hughes Senior Academic University of Westminster, Visiting Fellow University of Essex and European Competition Counsel, Steptoe & Johnson LLP Brussels, gave a brown-bag seminar entitled "Social factors and EU merger control".
The Future of Family Property in Europe - April 2010
The fourth conference of the Commission on European Family Law: The Future of Family Property in Europe was held at the University of Cambridge in April 2010, following previous conferences in Utrecht (2002 and 2004) and Oslo (2007).
The conference aimed to enhance the exchange of ideas and arguments about comparative and international family law in Europe, and attracted a wide audience of academics and practitioners from all over Europe and beyond.
The theme of the conference was chosen in light of the CEFL’s current work on Principles of European Family Law regarding Property Relations between Spouses. This is the CEFL’s third working field, following the successful publication of its Principles regarding Divorce and Maintenance between Former Spouses (2004) and Parental Responsibilities (2007). The complex and technical nature of the field of comparative matrimonial property law mean that deliberations on the current project will continue into 2011, but initial findings of the project were presented at the conference.
The conference plenary sessions, which opened with a keynote lecture from the Rt Hon Lord Justice Thorpe, also considered the autonomy of spouses and cohabitants to make agreements regulating their property relationships, and the increasing unification of private international law in family matters pursued by both the Hague Conference on Private International Law and the European Commission. As at previous conferences, early career researchers presented their research in three parallel working groups. This year’s themes were child maintenance, the protection of the elderly, and freedom of testation and the protection of family members.
For full details of the papers presented, refer to the programme.
The conference proceedings will be published later this year by Intersentia.
Generously supported by:
Intersentia; International Family Law Group; Mohr Siebeck; Mills & Reeve; Charles Russell; The John Hall and Yorke Funds (University of Cambridge); and the British Academy.
Marital Agreements and Private Autonomy in a Comparative Perspective - June 2009
Unlike many jurisdictions, England and Wales does not have a matrimonial property regime. Instead the courts are given a wide discretion as how to determine the financial consequences of a divorce. While this allows for a great degree of flexibility and thus (at least theoretically) for fair outcomes in each particular case, it creates significant uncertainty for the spouses – despite (or maybe even because of) recent House of Lords decisions like White v White  1 AC 596 and Miller v Miller; McFarlane v McFarlane  UKHL 24. The current state of the law has been the subject of much criticism, from both academics and practitioners.
This research project combined the expertise of academics from several European and non-European jurisdictions to compare how marital agreements function in their respective national legal and social contexts; it also examined whether there are underlying principles to be found in most or even all jurisdictions. Further, based on the comparative analysis, the project concluded with recommendations for the regulation of marital agreements.
For further information please contact: Dr Jens M. Scherpe, University of Cambridge, email: firstname.lastname@example.org
This research project was supported with a Small Research Grant by the British Academy.
Fighting Financial Crime in Europe: Practical Aspects of a Pan European Criminal Law - September 2009
Are we inexorably heading towards a European criminal law ? What safeguards exist for the Defence in pan European investigations ? How does OLAF, the Community’s 10 year old anti fraud unit, go about its business ? What can we do to combat and reduce fraud in Europe ? Will the new European Evidence Warrant help – and how will it work ?
These questions and many others were debated by practitioners, academics and policymakers from the UK and other Member States of the European Union.
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