France takes Google to top European court over 'right to be forgotten' in freedom of expression threat

The battle between Google and France’s data protection authority over the reach of an order to remove links to material under the so-called “right to be forgotten” has been referred to the European Court of Justice.

France’s Commission Nationale Informatique et Libertes (CNIL) is demanding that de-listing of material under the right to be forgotten should have global effect – but Google says that that would have a devastating effect on freedom of speech.

The case reached the Conseil d’Etat, France’s highest administrative court, which this week referred the issue to the EU Court of Justice.

Reuters quoted the court as saying: “With today’s decision, the Council of State believes that the scope of the right to be de-listed poses several serious difficulties of the interpretation of European Union law.”

In 2014, CNIL ordered Google to remove 21 links from the results of an internet search on the name of a French citizen who claimed a right to be forgotten – the right to have results removed from searches when they are embarrassing or out of date.

Google initially removed the links from its French search site and other European search sites. It then blocked the links from results returned to European users, even when they were using Google’s non-European sites.

In March last year, CNIL fined Google €100,000 euros (£89,500) because the de-listed results could still be accessed outside France and Europe.

CNIL demands that when it orders content to be “forgotten” from search results, this decision must be given effect worldwide – the results must be made unavailable to all users internationally, regardless of where they are accessing internet search engines.

It argues that failing to remove links with global effect creates an “absurd” situation where material which cannot be shown in Europe to protect a person’s right to be forgotten remains available globally, undermining that right.

But the effect of CNIL’s decision is to enforce France’s right to be forgotten beyond its borders and in countries which do not even recognise the right, raising concerns about country-specific laws limiting what is available on the internet for everyone else.

Google is challenging the decision on the grounds that the French approach would create a precedent for governments to force worldwide removal of content which was illegal in their own countries but legal in others.

The case raises the issue of what would happen to the internet if countries with sharply diverging definitions of acceptable and lawful online speech were able to enforce their standards globally by forcing Google to remove content elsewhere in the world.

Were this to happen, the information available on the internet would have to comply with the world’s strictest legal restrictions, with serious implications for freedom of expression, particularly in the developing world.

A group of 18 non-governmental organisations (NGOs) specialising in defending human rights and online freedom of expression in Africa, Asia, Latin America and Europe intervened in the case at the Conseil d’Etat, with the assistance of barristers Caoilfhionn Gallagher QC, Jude Bunting, Jennifer Robinson and associate Nani Jansen Reventlow, all of whom have expertise in freedom of expression law and are members of Doughty Street International members.

The NGOs’ intervention brief raised concern about the impact of CNIL’s decision on the many people across the world whose rights they protect, and on their ability to do their work.

It was important for them to be able to rely on the free exchange of ideas and information online so as to carry out their important human rights work, they argue, pointing out that the internet is particularly important to those working in countries where restrictive laws limit the information available in the local media.

The decision to refer the case to the European Court of Justice follows a string of domestic decisions about the right to be forgotten in the Netherlands, Japan, France and Belgium which demonstrate the widely divergent approaches taken by different countries, the dangers of seeking to apply any one country’s laws beyond its borders, and the difficulties of regulating cross-jurisdictional flows of information.

The intervention brief is available online.

Picture: Reuters

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