BALANCING RIGHT TO BE FORGOTTEN WITH

FREEDOM OF EXPRESSION IN SPENT

CRIMINAL CONVICTIONS IN EU

Kamrul Faisal
Faculty of Law
University of Turku
Seminar Paper
 PURPOSE

• whether right to be forgotten is properly balanced with freedom of

expression in spent convictions in EU.
 JUSTIFICATION

• Facts:
 People with criminal record- Reformed- Criminal records online in
news, articles
 Employment, Insurance, Educational opportunities, Aspects of civil
society
 75% of employers discriminate against applicants on the basis of a
criminal record, common for employers to use the internet as a key part
of their recruitment process. To some, it’s human nature to ‘google’
somebody
 PAPER AT A GLANCE

• Chapter 1: Introduction
• Chapter 2: Propagation to both Rights
• Chapter 3: Balancing Issues
• Chapter 4: Role Players/ Sources in Balancing and Gaps
• Chapter 5: Conclusion
 EXISTING BALANCING PRACTICES

• Derived from Google Spain

1. Balancing public access to information and privacy rights: public interest
vs. right to removal
2. Balancing access to archived information and right to be forgotten:
scientific, historic or research purpose vs. right to delink
3. Balancing different provisions of CFR: CJEU upholds right to be forgotten
at the expense of freedom of Charter. Charter gives Art. 11 and Art. 8 equal
priority
• Clash between GDPR and ECJ Practice on Privacy Rights:
Art. 10, Recital 19 vs. Press Release
 DIFFERENT APPROACHES

• ECJ approach
• Scholars’ approach
• GDPR approach
 FINDINGS

Balancing is in its grey zone:

1. GDPR ignites tension between these two rights; Art. 17(3)(a)
2. CJEU failed to formulate a test to prioritize among public and private
interest when both interests are competing in the same litigation
3. Traits of Art. 8 and 11 of CFR reamins in discomfort
4. Disharmonization incited by ECJ, is not harmonized under GDPR
because right is provided without insurance.
 CONCLUSION

Balancing has just entered into youth after surviving infancy.

To put differently, it is in 2nd generation. We need to push it to
3rd generation for more tangible norms.
QUESTIONS
AND
COMMENTS

THANK
YOU