Does the EU’s right to be forgotten extend to the whole world? The French data protection authority, CNIL, says yes and wants search engines to delist search results which contain information that violates the European Union’s right to be forgotten – not just for French users, not just for European users, but for all users everywhere. Google is prepared to remove offending search results for European users, but balks at removing material globally just because European courts find that it violates European privacy rules.
Removing material globally means that if a search engine decides that European criteria for whether a search result violates the privacy rights of a European citizen are satisfied, no one in the world will be able to find that information using a search engine. The material will still be on the publisher’s site, but no one will be able to find it. It will be as invisible to the world as a book sitting in a dusty library shelf whose existence has been removed from the library’s card catalogue.
As Reuters reported, on Wednesday, July 7, 2017, France’s highest court, the Conseil d’Etat, referred the case about applying the right to de-indexing globally to Europe’s highest court, the Court of Justice of the European Union (CJEU). Now, the CJEU will get to decide who is right. Here’s hoping they reject CNIL’s ill-considered attempt to globalize its local privacy regime.
Google was fined $100, 000 Euros by CNIL in March 2016 for not de-listing material globally. The search engine company did not dispute the need to remove “inadequate or irrelevant” information from its search results when searches were conducted under people’s names. That’s required by the CJEU’s March 2014 decision establishing a right to be de-indexed and putting the responsibility for determining when a search result contains irrelevant or outdated information on the search engine itself.
The issue now is the territorial scope of the right to be forgotten. In a comment on the statement of the Conseil d’Etat, the group Internet and Jurisdiction said that the Conseil “had asked the CJEU how the right to be de-indexed should be applied, and most importantly whether it can apply outside of the borders of the European Union.”
As I’ve said several times before (here and here), the right to be forgotten is a terrible idea that privileges privacy over free speech in an unbalanced way that is not widely accepted around the world. To impose this unique policy balance on the rest of the world is Internet hubris that we would all recognize as unwarranted when a less democratic government attempts it.
But even less democratic governments have learned to limit their global reach in the digital age. Turkey does not want its own people denigrating Turkishness; nor does it want any outsider to come into its country and break this law designed to uphold the ideals of the Turkish nation. It is only right to respect this policy when companies want to provide service and information to Turkish citizens.
But Turkey has come to recognize that this restriction on speech cannot be imposed on the rest of the world. It does not seek to punish a newspaper or website or social network that makes available to people in other countries information that would not be publishable in Turkey. The local law stays local, and in the Internet age the rest of the world is unaffected by it.
CNIL’s attempt to globalize the right to be forgotten ignores this lesson in international civility. Europe’s highest court now has a chance to reassert principles of national self-restraint and comity that are vital for effective governance of a communications network that is intrinsically global in character.