Preliminary Opinion from Court of Justice of the European Union in Google v CNIL case about the right to be forgotten affirms the need to protect freedom of expression

On 10 January 2019, the Advocate General of the Court of Justice of the European Union (CJEU) delivered a landmark preliminary opinion (available below) in the Google v. CNIL case in respect of the scope of individuals’ right to request the removal, or “de-referencing”, of online information about them. Advocate General Maciej Szpunar opines that enforcement of a successful claim to that right should apply only to the EU and not worldwide.

The right to be forgotten originated in the landmark 2014 judgment in Google Spain v. AEPD and Mario Costeja Gonzalez, in which the CJEU held that individuals may request search engines to remove links to inadequate, irrelevant or excessive content relating to them online. The present case was shortly thereafter referred to the CJEU for clarification by the French Conseil D’État, with the French data regulator (Commission Nationale de l’Informatique et des Libertes, or “CNIL”) arguing that where a claim in respect of the right to be forgotten has been successful, search engines should be required to de-reference all relevant links from not only the domestic domain but from all of its domains worldwide.

MLDI was part of a coalition of international freedom of expression organisations who intervened at the CJEU, 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 prohibition of speech if de-referencing exercises could have worldwide extra-territorial effect.

The Advocate General today similarly stated that the right to be forgotten must be balanced against other fundamental rights, as well as the legitimate public interest in accessing the information sought. He further stated that the considerations involved in such a balancing exercise will vary from one jurisdiction to another, such that global de-referencing orders would risk preventing persons in third states from accessing information and, in turn, risk third states preventing individuals within the EU from accessing information. The Advocate General therefore proposes that the CJEU should hold that, where a claim for de-referencing has been successful, the search engine operator should only be required to effect de-referencing within the EU.

The Advocate General’s opinion is an important step in support of the protection of freedom of expression in the context of competing fundamental rights. Whilst not binding, the opinion may be indicative of the forthcoming CJEU judgment in the case. The judgment of the CJEU is expected in April 2019.

MLDI intervened alongside the Reporters Committee for Freedom of the Press, American Society of News Editors, The Associated Press, Association of Alternative Newsmedia, Chicago Tribune Company LLC, Dow Jones & Company, Inc., The E.W. Scripps Company, First Look Media Works, Inc., Floyd Abrams Institute for Freedom of Expression, Gannett Co., Inc., Hearst Corporation, International Documentary Assn., Los Angeles Times Communications LLC, Media Law Resource Center, Media Legal Defence Initiative, MPA – The Association of Magazine Media, National Press Photographers Association, National Public Radio, Inc., The New York Times Company, News Media Alliance, Online News Association, Thomson Reuters Markets LLC, The Seattle Times Company, Tully Center for Free Speech and The Washington Post.

The Advocate General’s full opinion, in French, can be found here.

The CJEU’s press release in respect of the opinion can be found here.