How far does the “right to be forgotten” extend? Crucial case referred to Court of Justice of the European Union

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Posted on: 
20 Jul 2017

MLDI has joined with 20 organisations in intervening before one of France’s highest courts, the Conseil D’État, to set out the negative implications that global “de-listing” has on journalistic freedom and the public’s right to receive information.

In 2014, the French data protection authority, Commission Nationale de l'Informatique et des Libertés (CNIL), demanded that Google “de-list” search results worldwide that linked to a story about a French national who was claiming his “right to be forgotten”. Google challenged this before the Conseil D’État, and MLDI and 20 other organisations filed a brief on the threat posed to media freedom across the globe by CNIL’s demand. On 19 July 2017, the Conseil D’État accepted this brief and has sought answers from the Court of Justice for the European Union (CJEU) on the true jurisdictional extent of the “right to be forgotten”.

The “right to be forgotten” gained significant momentum in Europe in 2014 when the CJEU handed down its decision in Google Spain v. AEPD and Mario Costeja Gonzalez. In this ground-breaking judgment, the CJEU recognised that search engines have an obligation to “de-list” search results that are “inadequate, irrelevant […] or excessive in the light of the time that had elapsed.”

In the same month as the Google Spain judgment, the French data protection authority, CNIL, ordered Google to remove search results that linked to certain stories about a French national who was claiming his “right to be forgotten”. Google initially removed the links from its French domain (http://www.google.fr/) and other European domains. Google also blocked the search results from showing up when a user in Europe was conducting a search through a non-European domain (such as www.google.com). However this was not enough for the CNIL, which demanded that the search results be “de-listed” worldwide (i.e. removed from all domains). For failing to comply with this demand, CNIL imposed a €100,000 fine against Google which was then challenged before the Conseil D’État.

“If such ‘de-listing’ demands were the norm, the right to receive and impart information across the globe would be significantly undermined,” said MLDI’s Senior Legal Officer, Jonathan McCully, “global ‘de-listing’ orders would make certain search results disappear regardless of where the user making the search was located and regardless of what national domain they were using. By recognising that domestic authorities can make such wide-ranging and extra-territorial orders in ‘right to be forgotten’ cases, the French courts would be endorsing a ‘race to the bottom’ when it comes free speech rights online.”

The Conseil D’État has issued a decision accepting the intervention of MLDI and 20 others, and has referred a number of questions to the CJEU. Through these questions, the Conseil D’État seeks to clarify whether Google Spain is to be interpreted as requiring the global “de-listing” of search results, or whether search results are only to be removed from EU domains or the national domain of the individual relying on their “right to be forgotten”. Once these clarifications have been given by the CJEU, the case will return to the Conseil D’État for final judgment.

MLDI intervened alongside the Reporters Committee for Freedom of the PressAbrams Institute, American Society of News Editors, The Associated Press, Association of Alternative Newsmedia, BuzzFeed, Chicago Tribune Company LLC, Dow Jones & Company, Inc., E.W. Scripps Company, First Look Media Works, Inc., Gannett Co., Inc., Hearst Corporation, Index on Censorship, International Documentary Association, Investigative Reporting Workshop at American University, Los Angeles Times Communications LLC, Media Law Resource Center, MPA – The Association of Magazine Media, National Press Photographers Association, National Public Radio, Inc., News Corp, The New York Times Company, News Media Alliance, Online News Association, Reuters America LLC, The Seattle Times Company, Tully Center for Free Speech, and The Washington Post.

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