EU Court protects global freedom of expression in right to be forgotten case

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Posted on: 
25 Sep 2019

 

The Court of Justice of the European Union (CJEU) has delivered its much-anticipated ruling in the ‘right to be forgotten’ case, Google v CNIL. The CJEU’s decision – that search engines such as Google are not required to apply the right to be forgotten worldwide – represents an important precedent for protecting freedom of expression and access to information online.

 

In its 2014 decision, Google Spain, the CJEU held that the right to be forgotten allowed European citizens to ask search engines, like Google, to remove search links to information connected to their name that could be considered, for example, no longer relevant. In its decision today, the CJEU found that the right to be forgotten can only be applied within the European Union (EU).

 

The question the CJEU had to consider was whether an order by a regulator in one EU state – that such information be removed or de-referenced from the Internet – should have effect worldwide. That question had been referred to the CJEU by the Conseil d’Etat, the highest administrative court in France, in order to resolve a dispute between Google and France’s data protection authority, CNIL, concerning the scope of Google’s responsibility to remove that information. CNIL’s position was that if they found that information linked to a French citizen should be removed, search engines such as Google should not only be compelled to remove links from google.fr but from all Google domains.

 

MLDI was part of a coalition of international freedom of expression organisations that intervened. in this case, highlighting the potentially far-reaching negative consequences for freedom of expression should CNIL’s argument be accepted. The intervention noted that the right to be forgotten must be balanced against the right to freedom of expression, that global de-referencing would be a disproportionate interference with freedom of expression, and that it would risk a ‘race to the bottom’ in terms of interference with speech if de-referencing had worldwide effect.  It also noted that the practical consequence of CNIL’s decision would be that regulators in Europe could decide which search results the rest of the world could see.

 

The CJEU endorsed the coalition’s arguments, noting that “the balance between the right to privacy and the protection of 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.” The CJEU also noted that the right to protection of personal data and the right to privacy must be balanced against other fundamental rights. While the CJEU’s judgment places a welcome limit on the global reach of the right to be forgotten, further clarification on its parameters is needed. Since 2014, Google has received more than 800,000 requests to remove more than 3.3 million links – within the EU alone. Those requests are determined by Google alone. As the coalition highlighted in its intervention, such requests often relate to online news media content or, at the very least, have a serious effect on the digital “archive”, which forms the basis of so much of modern-day reporting. 

 

MLDI’s Legal Director Padraig Hughes said “the decision represents an important clarification of the extent to which the right to be forgotten can be applied. Allowing a state to remove information from the Internet on a global scale would have had serious consequences for journalists, bloggers and human rights defenders around the world who depend on access to this information in order to protect rights and expose wrongdoing.”

 

The CJEU’s judgment can be found here:

http://curia.europa.eu/juris/document/document.jsf?text=&docid=218105&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=909913

 

The CJEU’s press release in respect of the judgment can be found here:

https://curia.europa.eu/jcms/upload/docs/application/pdf/2019-09/cp190112en.pdf

 

For further information please contact Padraig Hughes at Padraig.Hughes@mediadefence.org

 

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