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WORKING PAPER • VOL. 2 • N° 8 • DECEMBER 2016

THE “RIGHT TO BE FORGOTTEN” AND SEARCH ENGINE LIABILITY

 

by Hiroshi Miyashita

ABSTRACT

 

This paper aims to conduct a comparative study on the right to be forgotten by analyzing the different approaches on the intermediary liability. In the EU, Google Spain case in the Court of Justice clarified the liability of search engine on the ground of data controller’s responsibility to delist a certain search results in light of fundamental right of privacy and data protection. On the contrary, in the U.S., the search engine liability is broadly exempted under the Communications Decency Act in terms of free speech doctrine. In Japan, the intermediary liability is not completely determined as the right to be forgotten cases are divided in the point of the search engine liability among judicial decisions.

 

The legal framework of the intermediary liability varies in the context from privacy to e-commerce and intellectual property. In the wake of right to be forgotten case in the EU, it is important to streamline the different legal models on the intermediary liability if one desires to fix its reach of the effect on right to be forgotten. This paper analyzes that the models of the search engine liability are now flux across the borders, but should be compromised by way of the appropriate balance between privacy and free speech thorough the right to be forgotten cases.

 

Keywords: Privacy, Data Protection, Right to be Forgotten, Search Engine, Intermediary Liability

 

 

 

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