Where a regulator in one EU country requires information to be removed from the internet, should that be given effect in that one country, across the EU or globally?
This is the question France’s Conseil d’Etat, the country’s highest administrative court, has referred to the EU Court of Justice to decide to resolve a dispute between Google and France’s data protection authority, la Commission nationale informatique et libertés (“CNIL”). The dispute concerns the extent of Google’s responsibility to remove information from the internet in relation to the controversial “right to be forgotten”.
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of a French citizen who claimed a “right to be forgotten”: the right to have results removed that are embarrassing or out of date. Google initially removed the links from its French search site (www.google.fr) and other European search sites. Google then blocked the links from results returned to European users, even when using Google’s non-European sites, including www.google.com. Still, this was not enough.
CNIL demands that when it orders content to be “forgotten” from search results, this decision must be given effect worldwide. This means that the results must be made unavailable to all users internationally, regardless of where they are accessing internet search engines. CNIL also imposed a huge fine on Google, of €100,000.
CNIL’s rationale is that failing to remove links with global effect creates an "absurd" situation where data that can’t be shown in Europe to protect a person’s right to be forgotten remains available globally, undermining their right. But the effect of CNIL’s decision is to enforce France’s right to be forgotten beyond its borders and in countries which don’t recognise the right, raising concerns about country-specific laws limiting what is available on the internet for everyone. Google is challenging the decision for this reason: the French approach creates a precedent for governments to force worldwide removal of content that is illegal in their country.
What happens to the internet when countries with sharply diverging definitions of acceptable and lawful online speech are able to enforce their standards globally by forcing Google to remove content elsewhere in the world? If permitted, the information available on the internet will have to comply with the world’s strictest legal restrictions.
This has serious implications for freedom of expression, particularly in the developing world. For this reason, 18 NGOs specialising in the defence of human rights and online freedom of expression in Africa, Asia, Latin America and Europe intervened in the Conseil d’Etat case with the assistance of Doughty Street International members Caoilfhionn Gallagher QC, Jude Bunting, Jennifer Robinson and associate Nani Jansen Reventlow, all of whom have expertise in freedom of expression law. 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. The NGOs argued for the need to be able to rely on the free exchange of ideas and information online in order to carry out their important human rights work. The internet is of particular importance to those working in countries where restrictive laws limit the information available in the local media.
The decision 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. This only highlights the danger of applying any one country’s laws beyond their borders and the difficulties of regulating cross-jurisdictional flows of information.
The intervention brief can be read here in French and English.