The Right to Be Forgotten

Google has refused to recognise an order by French national data protection authority, the Commission nationale de l’informatique et des libertés (CNIL), to filter its worldwide search engine results in compliance with the European Court of Justice’s “right to be forgotten” ruling. The ruling, explained via the CNIL website:

In its decision of 13 May 2014, the Court of Justice of the European Union has recognized the right to delisting. The exercise of this right results from the application of European data protection law to search engines, including Google. In practical terms, any individual who wants to see removed one or more results displayed following a search made on the basis of his/her name can make a request to a search engine. The search engine then reviews the request and grants it if the legal conditions are met.

In case of refusal by the search engine to carry out the requested delisting, the individual can lodge a complaint with the data protection authority (in France, the CNIL), or the competent judicial authority in each Member State.

In other words, governmental bodies within the European Union are now presumed to have legal authority over how search engine providers control content online, which in theory means Google will be forced to honour individual requests for the removal of certain links from its results, based on searches using a person’s name. Why it is presumed that Google cares what the European Court of Justice says is Europe’s prerogative. In the meantime, here it is from the horse’s mouth.

…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

Peter Fleischer, Global Privacy Counsel, Google

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