The Court of Justice of the EU has ruled that right to be forgotten orders do not apply to global searches, only in a member’s state jurisdiction.
A recent court ruling by the Court of Justice of the EU (CJEU) is being hailed as a major win for free speech. The court ruled that if there is a Right to be Forgotten order issued in one state, it doesn’t have to be applied globally.
Generally, the Right to be Forgotten is based on the idea that if someone has damaging information about themselves indexed on a search engine, they can demand it be removed if its old and not in the public’s interest. Problems started emerging when some individuals decided to start demanding takedowns of more recent material. As such, it began raising concerns about free speech.
The matter in this case asked whether or not such an order would apply globally. If someone in France issues a Right to be Forgotten order against Google, does Google have to remove it from every search result or just France’s results?
One concern is that if the results have to be taken down globally, then this could result in forum shopping. If someone is wanting to take something down, just pick the jurisdiction that will most likely rule in favour of the takedown request. Such a concept has huge free speech implications.
Now, we are learning that such orders only apply in on jurisdiction instead of globally. In response, the Electronic Frontier Foundation (EFF) is hailing this as a win for free speech:
EFF joined Article 19 and other global free speech groups in urging the Court of Justice to reach this decision and overturn a ruling by CNIL. As the brief explained, a global delisting order would conflict with the rights of users in other nations, including U.S. users protected by First Amendment. U.S. courts have consistently held that the First Amendment’s protections for expression, petition, and assembly necessarily also protect the rights of individuals to gather information to fuel those expressions, petitions, and assemblies.
As we explained in the brief:
“In the United States, a right to de-reference publicly available information on data protection grounds would be unconstitutional: the First Amendment to the US Constitution guarantees the right of people to publish information on matters of public interest that they acquire legally, even in the face of significant interests relating to the private life of those involved (Smith v. Daily Mail Publishing Co. 443 US 97 (1979)). This reasoning extends to those situations where there is a significant governmental interest in maintaining the confidentiality of the information in question (Oklahoma Pub. Co. v. Distr. Court 430 US 308 (1977), where the information concerns judicial procedures (Landmark Communications, Inc. v. Virginia 435 US 829 (1978) and even where the publisher of the information knows that her or his source obtained the information illegally (Bartnicki v. Vopper 532 US 514 (2001). The First Amendment also guarantees the right to receive information, including by means of a search engine (see e.g. Langdon v. Google 474 F. Supp. 2d 622 (D. Del. 2007)). . . . The incompatibility of broad de-referencing obligations with US law is especially relevant in the present case given that all major search providers are established in the US…”
The CJEU agreed. It found “that numerous third States do not recognise the right to de-referencing or have a different approach to that right. . . . Furthermore, the balance between the right to privacy and the pf personal data, on the one hand, and the freedom of information of internet users, on the other, is likely to vary significantly around the world.” Thus, “there is no obligation under EU law, for a search engine operator . . . to carry out such a de-referencing on all the versions of its search engine. . . . [and] a search engine operator cannot be required . . . to carry out a de-referencing on all the versions of its search engine.
The CJEU also found that EU state data protection regulators could only order de-listing in domains associated with other EU member states after conferring with their counterparts from other states. The purpose is to ensure that such an order would be consistent with any other state’s implementation of the Right to be Forgotten.
The ability of one nation to require a search engine to delist results globally would prevent users around the world from accessing information they have a legal right to receive under their own country’s laws. That would allow the most speech-restrictive laws to be applied globally. The CJEU decision rightly rejected that scenario.
The idea that the laws could be amended to permit global delisting is still on the table. So, it’ll be interesting to see if lawmakers are willing to travel down this road again and introduce more strict laws in response. Still, a win for digital rights is a win for digital rights. With all that has happened with the copyright directive, good news will no doubt be very welcome news for those who are concerned with digital rights.
Drew Wilson on Twitter: @icecube85 and Facebook.
