Black Friday

EU Court to Rule on “Right to Be Forgotten” Outside Europe

Stan Ward

Stan Ward

July 21, 2017

In a test of how far laws regulating the internet may reach, the EU’s highest court will decide soon whether its “right to be forgotten” rules can prevail beyond Europe’s borders. The decision has broad implications. It is the last step in a three-year legal battle between Google and France. It could affect how nations around the world make decisions on whether details of an individual’s past are removed (and how).

The European Court of Justice (ECJ) will need to be more specific when it rules this time. Observers claim it should detail whether or not sites have to delete links only in the country making the request, across the EU, or (as France desires) globally.

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To refresh you, back in 2014 the ECJ backed the right to be forgotten. It required Google to delete “inadequate, irrelevant or no longer relevant” data from its search results, should a member of the public ask it to do so. This was in response to a suit brought against Google by a Spanish man, Mario Costeja González.

The case has been seen as an important test of the “right to be forgotten.” It was brought when Costeja González failed in an attempt to secure the deletion of an auction notice of his repossessed home. The notice dated from 1998 on the website of a mass circulation newspaper in Catalonia. In an advisory judgment, the ECJ ruled that individuals have a right to control their private data, especially if they are not public figures.

In the current case, the stakes are high both for Google and France. The French feel that only a victory would validate the three-year-old court ruling. If they don’t win, the French feel the previous, limited ruling would be akin to a “paper tiger.” Internet users from outside France’s borders could easily access a person’s sensitive past history. They could also fake their IP address to accomplish the same result. Meanwhile, sustaining the 2014 ruling could be a nightmare scenario for Google, both financially and philosophically.

Google’s posture is that if France prevails it will have a negative snowball effect around the globe. Nations where repression is the norm could lean on the ruling to enforce even harsher measures within their borders, because this law would universalize repression across borders around the world. For example, Thailand, where it is a crime to criticize the king, could use the decree to make it a crime elsewhere around the world to criticize him.

Peter Fleischer, Google’s global privacy counsel, argued that,

“For the last 18 months, we’ve been defending the idea that each country should be able to balance freedom of expression and privacy in the way that it chooses, not in the way that another country chooses. We’re doing this because we want to ensure that people have access to content that is legal in their country.”

The court’s decision is also fraught with financial implications for the Silicon Valley giant in the way of fines. Google has already felt the wrath of daily levies from the court, as well as from the CNIL, France’s data-protection regulator. It has consistently pushed back at Google’s attempts to limit the extent of the ruling, first to just Google.fr and other European Google domains, and then to any Google user based in Europe. By fining Google €100,000, it showed the bark behind its bite.

Nor is France the only headache with which Google must contend. It is already reeling from a decision by the Canadian Supreme Court in June. Canada’s Supreme Court ruled that Canadian courts can force Google to remove links globally, as the internet has no borders. There, though it has no right of appeal, Google is arguing that the Canadian court’s decision, if applied, would force it to break existing laws in other countries.

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The ECJ ruling is expected soon. It may even come before the usual August recess, though this is not certain. Stay tuned!

Image Credit: corgarashu/Shutterstock.com

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