Right to Be Forgotten

"Right to Be Forgotten" Continues to Push EU Borders

Nicole Motta on Wednesday August 5, 2015 05:53:22 PM

Google rejected CNIL's request to expand the EU ruling globally, but critics fear what will happen if Google loses this battle.

Late last month, Google said that it "respectfully disagree[s] with the CNIL's assertion of global authority" on the EU ruling and asked the French watchdog to withdraw its order. Under CNIL's plan, all of Google's sites worldwide would be forced to follow the "right to be forgotten" ruling. In response, Google said that this plan is "a troubling development that risks serious chilling effects on the web" and emphasized that the right to be forgotten is not the law globally. If it were, Google said, "the Internet would only be as free as the world's least free place." By not complying with CNIL's order, Google could face fines up to €150,000.

While Google has already risked being fined for disobedience, free speech advocates are wary about the ruling's expansion. One such advocate, Emma Llansó - a free expression scholar at the Center for Democracy and Technology think tank - said, "When we're talking about a broadly scoped right to be forgotten that's about altering the historical record or making information that was lawfully public no longer accessible to people, I don't see a way to square that with a fundamental right to access to information." Harvard law professor Jonathan L. Zittrain echoed this response, saying, "France is asking for Google to do something here in the U.S. that if the U.S. government asked for, it would be against the First Amendment. That is extremely worrisome to me." CNIL is expected to respond to Google's request within the required two-month period.

In a landmark ruling in May 2014, the Court of Justice of the European Union (CJEU) established a "right to be forgotten", or more accurately, a “right to delist”, allowing Europeans to ask search engines to delist certain links from results they show based on searches for that person’s name. We moved rapidly to comply with the ruling from the Court. Within weeks we made it possible for people to submit removal requests, and soon after that began delisting search results.

It's now just over a year later and we’ve evaluated and processed more than a quarter of a million requests to delist links to more than one million individual web pages. Whenever a request meets the criteria set by the Court for removal (which are that the information can be deemed inadequate, irrelevant, no longer relevant or excessive, and not in the public interest) we delist it from search results for that individual’s name from all European versions of Google Search.

However, earlier this summer, France’s data protection regulator, the CNIL, sent us a formal notice ordering us to delist links not just from all European versions of Search but also from all versions globally. That means a removal request by an individual in France, if approved, would not only be removed from google.fr and other European versions of Google Search, but from all versions of Google Search around the world.

This is a troubling development that risks serious chilling effects on the web.

While the right to be forgotten may now be the law in Europe, it is not the law globally. Moreover, there are innumerable examples around the world where content that is declared illegal under the laws of one country, would be deemed legal in others: Thailand criminalizes some speech that is critical of its King, Turkey criminalizes some speech that is critical of Ataturk, and Russia outlaws some speech that is deemed to be “gay propaganda."

If the CNIL’s proposed approach were to be embraced as the standard for Internet regulation, we would find ourselves in a race to the bottom. In the end, the Internet would only be as free as the world’s least free place.

We believe that no one country should have the authority to control what content someone in a second country can access. We also believe this order is disproportionate and unnecessary, given that the overwhelming majority of French internet users—currently around 97%—access a European version of Google’s search engine like google.fr, rather than Google.com or any other version of Google.

As a matter of principle, therefore, we respectfully disagree with the CNIL’s assertion of global authority on this issue and we have asked the CNIL to withdraw its Formal Notice.

We have worked hard to strike the right balance in our implementation of the European Court’s ruling and have maintained a collaborative dialogue with the CNIL and other data protection authorities, who agree with our decisions in the majority of cases referred to them. We are committed to continuing to work with regulators in this open and transparent way.

Posted by Peter Fleischer, Global Privacy Counsel