France told to stay in its lane over ‘right to be forgotten’

Google has won a landmark case against French regulator Commission nationale de L’informatique et des libertés (CNIL) over the ‘right to be forgotten’ rules.

After being fined €100,000 for refusing to de-reference certain references in markets outside of the CNIL jurisdiction, Google took the regulator to the Court of Justice of the European Union. And Europe’s top court agreed with the search giant.

“The operator of a search engine is not required to carry out a de-referencing on all versions of its search engine,” the court ruling states.

“It is, however, required to carry out that de-referencing on the versions corresponding to all the Member States and to put in place measures discouraging internet users from gaining access, from one of the Member States, to the links in question which appear on versions of that search engine outside the EU.”

In short, Google must de-reference inside the European Union, while also preventing internet users inside the bloc from accessing de-referenced content which is hosted elsewhere. Preventing those inside the European Union from seeing de-referenced content on versions of the search engine outside of the bloc will be complicated, there is always a workaround if you know what you are doing, however it is a win for Google.

For the CNIL, this is a humbling ruling however. The regulator has effectively been told to stick to its job and not try to force its will upon companies where it has no right to. And we whole-heartedly agree.

The French regulator has no right to impose its own rules on Google when it is operating in other sovereign nation states.

This case dates back to 2015 when the idea of ‘right to be forgotten’ was forced upon Google. In France, and generally across Europe, an individual or company can request Google de-reference search results which are damaging or false. This does not give individuals freedom to remove any reference to them which they don’t like, but it does allow for the removal of false information. These are reasonable rules.

In reaction to the rules, Google geo-fenced internet users in the European Union, but refused to de-reference information on versions of the search engine outside the bloc. This is a reasonable response and course of action.

This is what the French regulator had an issue with, though it has quite rightly been told to stay within its remit. This is a reasonable judgement.

What the French regulator was trying to do was wrong and would have set a damaging precedent. No government or regulator should be allowed to apply its own rules outside its border. The European Union is a tricky situation, as rules can be extended to member states, though there is a hard border at the edge of the bloc.

Thankfully the Court of Justice of the European Union has applied logic to the situation.

EU Advisor tells France to forget about global ‘right to be forgotten’

The Advocate General of the European Court of Justice has given his opinion on the ‘right to be forgotten’ conflict between France and Google, and its good news for the ‘do no evilers’.

Advocate General, Maciej Szpunar, has been pondering the implications of the ‘right to be forgotten’ saga for some months now, and the opinion is relatively simple; France does not have the right to impose its own considerations on a company which operates outside its jurisdiction.

The French regulator can force Google to de-list search results on the grounds of privacy in France, and generally across the EU, though it does not have the authority to impose itself on the companies worldwide footprint. As the Advocate General notes, the repercussions of such a ruling would have too much potential to cause damage in various other scenarios.

The case is somewhat of a tricky one, as it does have implications in the contentious world of privacy/free speech/accountability. And while the European Court of Justice does not have to follow the opinion of the Advocate General, it generally does.

“This is a really important case pitting fundamental rights to privacy against freedom of expression,” said Richard Cumbley, Partner and Global Head of Technology at law firm Linklaters. “The case highlights the continuing conflict between national laws and the Internet which does not respect national boundaries.

“The opinion contains a clear recommendation that the right to remove search results from Google should not have global effect. There are a number of good reasons for this, including the risk other states would also try and supress search results on a global basis. This would seriously affect people’s right to access information.”

The case dates back to the early months of 2018, with the CNIL, France’s data protection watchdog, suggesting the search giant should have to enforce any ‘right to be forgotten’ rulings to all of its domains instead of just that of the home nation of the challenging regulator. Google, and various other free speech advocacy groups, have been suggesting France and the European Union are attempting to impose their own data privacy position on the rest of the world.

Looking at the ramifications, those of us who have more long-term considerations would certainly be thankful of Szpunar’s opinion. As Cumbley points out above, this case could be used as evidence by other nations to supress free speech or opinions which are not in-line with the political climate. Precedent is everything in the legal community, and while it hopefully does not intend to, France may be aiding more authoritarian governments in trying to impose its privacy demands on Google.

What is worth noting is that this opinion is not an official ruling from the European Court of Justice, though it does generally head in the same direction as the Advocate General.