Social Media Director
Project Counsel Media
10 January 2019 (Paris, France) — In a preliminary opinion released today by the European Court of Justice (ECJ), the Court said the “right to be forgotten”, which enables claimants to request the removal of links to irrelevant or outdated online information about them, should not be enforceable globally.
- The ECJ established the “right to be forgotten” in a landmark 2014 ruling relating to a Spanish citizen’s claim against material about him found on Google searches. It allows European citizens to ask search engines to remove links to “inadequate, irrelevant or … excessive” content. Google has been inundated with millions of requests since then to remove material from online searches. ECJ rulings are binding in the UK.
- The court’s advocate general, Maciej Szpunar, issued the opinion, but final judgments by the ECJ usually endorse initial opinions.
- NGOs had issued several briefs that warned of potential harm to internet users’ rights if Google lost the ECJ case
Part of Google’s press release:
European data regulators should not be able to determine the search results that internet users around the world get to see. They should only be able to de-list websites within their country’s jurisdiction, and should balance the rights of both privacy and free speech when making that decision.
We hope that the CJEU will follow Szpunar’s opinion when it issues its judgment in this case later this year. The court must limit the scope of the ‘right to be forgotten’ in order to protect global freedom of expression and prevent Europe from setting a precedent for censorship that could be exploited by other countries.
And although the case relates to a dispute between Google and France’s National Commission for Information Technology and Civil Liberties (CNIL), a number of UK and international free speech organizations intervened, warning that extending the power could encourage censorship in countries such as China, Russia and Saudi Arabia.
Brief background of the case
Last year we sent clients a detailed analysis on this case but here are a few brief points:
- The two sides are battling over a shock 2014 decision at the same court which granted the right for individuals, under certain conditions, to have references to them removed from search engine results.
- Google firmly opposed the decision, but complied with the ruling by delisting search references once requested across its European domains.
- CNIL opposed the application distinction between the EU and globally and said the firm should apply the delisting to all extensions, regardless of the national domain.
- In 2016, CNIL fined Google 100,000 euros ($112,000) for non-compliance and Google appealed to France’s highest court, which in turn has referred to the ECJ for an opinion.
- Google argued that its application of the right to be forgotten is already effective in France for well over 99 percent of searches. It also added that the company has implemented geo-blocking technology for EU searches that attempt to use non-EU domains to access de-listed information.
- In September, EU court judges heard a long list of stakeholders (62) including human rights groups that fear abuses of the EU’s “right to be forgotten” rule by authoritarian states outside the bloc.
The opinion in brief
For the full opinion click here.
In brief, the opinion balances EU residents’ right to be delisted while respecting the constitutional rights of citizens outside of the EU. In his opinion, the advocate general said the right to be forgotten must be balanced against other “fundamental rights”, such as the right to data protection, privacy and the legitimate public interest in accessing information.
Two key paragraphs:
1. Szpunar indicates that the provisions of EU law applicable to the present case1 do not expressly govern the issue of the territorial scope of de-referencing. He therefore takes the view that a distinction must be made depending on the location from which the search is performed. Thus, search requests made outside the EU should not be affected by the de-referencing of the search results.
Interesting point: if worldwide “de-referencing” was allowed, EU authorities would not be able to determine a right to receive information or balance it against other fundamental rights to data protection and to privacy.
2. Szpunar does not rule out the possibility that, in certain situations, a search engine operator may be required to take de-referencing actions at the worldwide level, although he takes the view that the situation at issue in the present case does not justify this.
We’ll have more when the final opinion is released.
