The application of the right to be forgotten in the context of criminal records expungement: the case law of the European Court of Human Rights and the case law of the us courts
The personal right to privacy, which had been elaborated in the jurisprudence of Anglo-American and Continental law states, has rapidly transmuted into modern forms owing to technological advancement of data maintenance and data processing which gradually involved photographing, fingerprints and various DNA data. At the dawn of the 20th century, a multitude of lawsuits concerning criminal records expungement broke out – therein, the plaintiffs tried to obtain a court order for destroying their criminal record data, as well as data relating to a suspicion in committing crimes. The mode of data dissemination to, e.g. employers, educational institutions, banking and credit institutions has repeatedly had a negative effect on plaintiffs’ lives. The United States case law has not once shown that even in the pre-computer era the maintenance of such personal data for an unlimited time period could frequently bring to deplorable consequences – for instance, the plaintiff lost his job or business, or was unable to take a loan, which brought to new lawsuits wherein the plaintiffs applied for a court order either to expunge, or to restrict the dissemination of their respective criminal records by the law enforcement agencies. However, the case law hints that such data was also disposed by banks and various governmental institutions. Similar actions were also lodged to the European Court of Human Rights since 1990s which brought the issue at an international level. Bearing in mind a series of various “right to privacy” interpretations, especially a “right to be forgotten”, the author suggests relating the aforesaid actions to the said category. This paper is stringently devoted to the “criminal record expungement” aspect of this right. The paper is subdivided into two parts. The first part deals with the jurisprudence of the European Court of Human Rights on the subject. Quite a few decisions have been delivered by the said Court. The majority of the described judgments were delivered after the actions had been commenced against the government of France for introducing the plaintiffs into digital offender databases with an extremely vague legal possibility of criminal data expungement, and only in one of the trials the plaintiff succeeded. The second part of the paper is devoted to an analysis of US case law on the subject. The author discusses several notable judgements delivered by courts of state and federal jurisdictions as well as conducts a generalization of a) conjectural negative consequences to plaintiff in case his data is maintained indefinitely; b) groups of judgments where the courts adher either to order to expunge criminal records, to return the folder with them to plaintiff, or to restrict their dissemination, or not to expunge them at all.