What now for the right to be forgotten?

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

If Commissioner Viviane Reding is correct, the seismic changes proposed to Europe's data protection laws are now a foregone conclusion. After the Parliament recently voted 621 to 10, with 22 abstentions in favour of the latest text of the draft General Data Protection Regulation, she described the reforms as "irreversible".

Commissioner Reding celebrated the CJEU's decision with aposton Facebook saying that "[the] judgment is a strong tailwind for the data protection reforms" and that "data belongs to the individual, not the company, and unless there is a good reason to retain this data, an individual should be empowered - by law - to request erasure of this data. … This is exactly what the data protection reform is about: making sure those who do business in Europe, respect European laws and empowering citizens to take the necessary actions to manage their data. - Big data need big rights."

The original draft Regulation included the so-called "right to be forgotten" (the "right to be forgotten and to erasure", to give it its full name), which has proven to be one of its most controversial proposals. Critics questioned how in a hyper-connected world it would ever be possible to remove all copies of data from multiple applications stored on multiple servers around the world.

Furthermore, there are often legitimate reasons (such as free speech) why an organisation might retain information where the individual to whom it relates would rather it was deleted. It cannot be an absolute right and describing it as such would mislead the very individuals whom the right was intended to protect. In response to these criticisms, the latest draft of the Regulation makes some minor concessions. These include a rebranding of the proposals from "the right to be forgotten" to the "the right to erasure".

So, are the reforms proposed in the draft Regulation now inevitable? Not at all. Despite Commissioner Reding's enthusiastic postings, the final form of the Regulation and the timeframe of its adoption is far less certain. Why? Because it is all change in Brussels with current polls suggesting very significant changes to both the European Parliament and the Commission in this year's elections.

Commissioner Reding is stepping down from the Commission and is standing for Parliament and although the other key supporter of the Regulation, MEP Jan Philipp Albrecht, is expected to retain his seat in the Parliament, it will be a very different Parliament following May's elections. Significant gains are predicted for the extreme left and right wing parties at the expense of more centrist parties. How the new Parliament will view the draft Regulation is unclear. In addition, the Council of Ministers remains divided on the draft Regulation. Few expect to see a final text of the Regulation until 2015 and what that text will look like and what the right to be forgotten / right to erasure will entail is far from certain.