A critical analysis of the right to be forgotten in South African law in light of the rights of freedom of expression and privacy.

Abstract

The Protection of Personal Information Act 4 of 2013 (POPI) was fully commenced on 1 July 2020. POPI was formed by the principles laid down in the European Union Data Protection Directive 95/46/EC, which has now been replaced by the Regulation (EU) 2016/679 (General Data Protection Regulation or GDPR). POPI is designed to regulate the processing of personal information by public and private bodies in a manner that gives effect to the right to privacy subject to justifiable limitations that are aimed at protecting other rights and freedoms of not only the data subject, but also of the general public. POPI provides, under certain circumstances, for the correction as well as deletion of personal information. In terms of digitally stored information, deletion includes the de-indexing/de-listing by search engines as well as the taking down and complete removal and destruction of information, not only from web pages by those that control and process such information, but also information held in storage by public and private authorities. This process is called the right to be forgotten. Europe is one of the leading advocates of the right to be forgotten, with the Court of Justice of the European Union and European Court of Human Rights taking the lead in describing and outlining the scope of the right to be forgotten, especially since Google Spain SL, Google Inc. v AEPD, v Mario Costeja González EU:C:2014:317. The main objective of this thesis is to critically analyse the right to be forgotten in the South African legal context, and investigate how the right is balanced in light of the traditional rights of freedom of expression and privacy, in the digital age. The research involves setting out, as it relates to the right to be forgotten, the various legal principles and relevant legislative instruments from both national and foreign jurisdictions, describing and analysing the arguments from the European Courts, and critically examining how these could be applied in the South African context.