The Right to Be Forgotten as a Fundamental Right in the UK After Brexit

Abstract

Will Brexit diminish digital rights protection in the UK or are domestic institutions better-placed to deliver such protection unencumbered by the oversight of EU institutions? This article scrutinises the validity of conflicting arguments about the future of human rights protection in the UK by reference to a paradigmatically ‘European’ digital right, the right to be forgotten (RTBF). Having considered the interplay between the multiple layers of UK law that an RTBF claim involves, the article argues that some legal implications of Brexit will have a graver impact on digital rights protection than others. In respect of EU law no longer being supreme in the UK, the analysis offered here calls for more nuance in critical arguments about losing fundamental protections when it comes to the RTBF. Brexit, however, will erode the protection of the RTBF in the longer term as a result of the loss of EU law’s direct effect. The scope of the ‘British RTBF’ will be gradually developed as ‘narrower’ compared to EU member states due to fundamental differences between the UK and European conceptions of privacy. The central place of ‘reasonable expectations’ of the data subject within the UK privacy conception, it is argued, sits at odds with social realities related to the RTBF and, thus, raises significant risks for the robust protection of the right in the future.

Keywords: digital rights, right to be forgotten, Brexit, fundamental rights, reasonable expectations of privacy