From Norm Emergence to active Promotion through the Courts: A Case Study of the Right to be forgotten

Abstract

This article deals with the ‘right to be forgotten’ as defined in the EU General Data Protection Regulation, which is set to enter into force in May 2018. The development of the right to be forgotten is viewed in light of two concepts, which so far have not been addressed by academics writing on the subject. First, the right to be forgotten is reviewed in the eyes of Bob’s theory on norm emergence, acceptance and internationalisation. Second, the role of the courts in the development of this right is discussed using the legal interpretivist approach defined by Dworkin. For this court-driven approach, jurisprudence from Europe (Germany, Netherlands, France and the United Kingdom) and outside of Europe (United States) is reviewed. The goal of both approaches is to establish to what extent the right to be forgotten so far has stuck to known concepts regarding the emergence of human rights and to provide an outlook on what future developments the right to be forgotten would have to take in order to become an established, customary norm in the future.