The impact of the digital era on law

AuthorMr Édouard Crépey
PositionMaître des requêtes au Conseil d'État, rapporteur public à la 10e chambre de la Section du contentieux
[2018] Irish Judicial Studies Journal Vol 2(1) 67
Mr Édouard Crépey,
Maître des requêtes au Conseil d’État,
rapporteur public à la 10e chambre de la Section du contentieux
From a French perspective, the emergence of digital technology in economic
exchanges and social relations has disrupted legal systems like no other
technological revolution before it. An overview of these challenges will be set out
under three different strands, mainly based on recent jurisprudence of the French
Council of State (Conseil d’État) and Constitutional Council (Conseil
The digital revolution: a source of completely new legal questions
Firstly, the digital revolution has resulted in the emergence of new questions.
Existing legal instruments, we can assume, do not grasp these new legal
questions or correctly understand such questions. Two main examples shall be
The right to be forgotten
The active or even passive exposure of a person's activities or opinions on the
Internet (social networks, blogs, information sites, etc) leaves lasting traces in the
form of personal data, which can be found through search engines months and
years later. The magnitude of this phenomenon has given rise to the notion of a
right to be forgotten, which stems from a legitimate concern for the protection
of privacy.
No legal text, however, has clearly laid down this principle or guaranteed its
protection. As we know, the CJEU, faced with this issue, has taken an audacious
and pragmatic approach in its case law to deal, as far as is possible, with the tools
provided under Directive 95/56/EC of the European Parliament and of the
Council of 24 October 1995 on the protection of individuals with regard to the
processing of personal data and on the free movement of such data.
In order to
do this, the Court had to overcome several obstacles, mainly the following two.
The first was bringing search engine operators within the scope of the Directive
by considering them as controllers determining the purposes and means of the
processing of personal data within the meaning of Article 2 of the Directive. This
CJEU, 13 May 2014, Google Spain SL,Google Inc v Agencia Espanola de Proteccion de Datos, Mario Costeja Gonzalez,
Case C-131/12.

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