Empirical research has shown that the processes of human remembering and forgetting are subject to a number of laws: Neurosciences prove that forgetfulness is related to the gradual decline of brain synapses, psychology indicates that memory is deeply influenced by emotional affection, and cultural studies argue that oblivion is fundamentally subject to broad social and political changes.
Roughly five years ago the European Court of Justice (CJEU) added another law to these processes of remembering and forgetting: data protection law. Bringing into being what would become known as the right to be forgotten (rtbf), the Court in Google Spain SL ruled that the European Data Protection Directive equipped individuals with a right to have their personal data delinked from search engines or deleted completely. Last Wednesday the rtbf was introduced a new institutional stepparent: the German Federal Constitutional Court (GCC). Delivering judgments on two constitutional complaints – faithful to the GCC’s titling, we will call them RTBF I and RTBF II -, the Court not only ushered in a new phase of European judicial cooperation, but also provided new interpretations for the rtbf which lead to several conflicts with the CJEU.
After briefly sketching the GCC’s new conception of multilevel EU fundamental rights protection, I illuminate the two major inconsistencies vis-à-vis CJEU-interpreted European data protection the judgments lead to. In conclusion, I give a short outlook on potential future developments.Continue reading