The problems of protecting privacy and reputation online under English tort law: can "the right to be forgotten" provide the solution?

Abstract

This thesis operates around a central premise: there is a lack of personality rights for individuals in England and Wales with respect to personal information on the internet. This thesis examines whether the ‘right to be forgotten’ also known as the ‘right to erasure’ in Article 17 of the General Data Protection Regulation 2016 (GDPR) and enshrined in the Data Protection Act 2018 will begin to remedy this problem. This PhD firstly examines what the ‘right to privacy’ actually is by turning to legal theory – and adopts a working definition. It then moves to consider aspects of the GDPR that have relevance to the right to be forgotten and its exemptions. The thesis as a whole conducts a normative analysis through the lens of Article 8 of the European Convention on Human Rights – the right to private and family life. It draws on the breadth of Article 8 Strasbourg caselaw in order to extrapolate key ‘balancing principles’ which could be utilised by the English courts when interpreting the new erasure right. It also extrapolates principles from Strasbourg Article 10 (freedom of expression) caselaw, with suggestions on how these factors could be used by the courts when interpreting the right to erasure’s freedom of expression and journalism exemptions. Finally, it undertakes an assessment of both the English torts of misuse of private information and defamation. It highlights their failings and their patchwork protection of reputation-rights in respect of private information online. It strives to prove that the right to be forgotten, although not a perfect solution, does provide a better route to redress with respect to personal data online than both of the English torts currently in operation.