Derecho al olvido

What is the right to be forgot?

The derecho al olvido is a consequence of privacy law, in which it is not consider desirable that certain information remains publicly accessible. This is the case, for example, when the information is irrelevant and outdated, while it continues to unnecessarily damage the reputation. The public right to information, which is also a human right, must alway be take into account.

 In addition, the right to be forgot is increasingly appearing internationally in other sector. Recently, for example, in Belgium it also applies to the outstanding balance insurer, which after a while has to forget a cancer history (or is no longer allow to take it into account).

Right to be forgot in privacy legislation

The right to be forgotten is enshrine in the European Union in the GDPR ( General Data Protection Regulation ). It is the right to have certain incorrect or outdated privacy-sensitive information removed by processors of personal data . The GDPR refers to the “right to erasure”. Through the right to erasure, you can also demand that certain data be erase from search engine result.

Cotija judgment lays the foundation for the right to erasure

In fact, the right to erasure has its origin in the Cotija judgment of the European Court of Justice (case number C-131/12, 13 May 2014). Then a Spaniard, Mario Cotija González, had filed a case against Google. An old newspaper article from 1998 could be found via the Google search engine in which he could read about the force sale of his possession. 

According to the Spaniard, that information had lost all its relevance and caused unnecessary reputational damage. The information was not remove at his request and so he went to court. Ultimately, the European Court of Justice ruled that Google, as a processor of personal data, had to remove the results from its search engine. The article was allow to remain online on the newspaper’s website, but it could no longer be easily found via Google.

No absolute right and a difficult balancing of interests

In any case, the right to erasure is a complex matter because it interfaces with two human rights: the right to freedom of information (which prevent censorship and deletion) and the right to privacy (which mean that information must be delete).  

The person concerned must lodge an objection for this . The assessment takes into account, among other things, the relevance of the information, the correctness of the information, the public interest in the availability of that information and the personal interest of the person concerned.

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Right to be forgot is not a global right

The right to erasure is a European matter. When a search engine such as Google decides to remove the search results after making a thorough assessment, it has only a limited influence. As there is no global framework, there is also no global right to erasure to date.

Right to be forgot also relevant for outstanding balance insurance

Since 1 February 2020, the right to be forgot also apply to outstanding balance insurance in Belgium. It is a specific legal framework in which the outstanding balance insurer is no longer allow to take the previous illness into account for some time after successful cancer treatment.

However, the right to be forgot only apply to outstanding balance insurance to repay the mortgage loan for a family home or to repay a professional loan . In addition, the insurer must only forget about the cancer history after a certain period of time. In principle, the right to be forgot start 10 year after the end of active cancer treatment (eg surgery or chemotherapy) without recurrence.

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