The Right to be Forgotten: Balancing and Categorisation in the ECtHR’s and ECJ’s Case Law

Abstract This contribution offers a comparative analysis of the case law of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (ECJ) on the right to be forgotten. It demonstrates that the two Courts have mutually influenced one another and apply similar balancing criteria. However, it also observes that, when positioned on the spectrum between balancing and categorisation, the ECJ adopts a more rule-based style of adjudication, whereas the ECtHR continues to prioritise its flexible, case-specific balancing approach.

While neither approach is intrinsically superior, this article submits that the categorical method is particularly well suited to addressing some of the challenges associated with the enforcement of the right to be forgotten and its reconciliation with freedom of expression. By offering greater legal certainty, a rule-based methodology may help mitigate the chilling effect on editorial decision making and support media companies in managing high volumes of requests to alter or de-index content in online archives more efficiently.