The Right to be Forgotten in 2022 - Luxembourg judges keep surfing the legislative void

On 8 December 2022, the Court of Justice of the European Union (CJEU) in Luxembourg delivered its latest landmark judgment on the ‘right to be forgotten’ in case C-460/20 TU, RE vs Google LLC. In many aspects the Grand Chamber follows the opinion of Advocate General Pitruzella from 7 April 2022, and the verdict can be described as an incremental continuation of the established jurisprudence, which started on 13 May 2014 with case C-131/12, Google Spain.

From a legal perspective two aspects stand out: on the one hand, the court clarifies the interpretation of European Union (EU) data protection law — Article 17 of the EU General Data Protection Regulation (GDPR) in particular. On the other hand, photos and ’thumbnails’ are now included in the scope of the right to ‘de-reference’ search engine results, based on a separate assessment that has to be carried out by the operator. Despite the largely incremental character, the judgment received broad news coverage. This post analyses and comments the verdict, arguing that the continuing legal manifestation of the right to erasure/be forgotten/de-referencing raises more fundamental questions on the governance of the datafication of society in the EU.