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The Right to be Forgotten – Somewhere

September 26, 2019

De-referencing requirement limited to Member States of European Union, not worldwide

In Google LLC v Commission nationale de l’informatique et des libertés (CNIL), the Court of Justice of the European Union has sided with Google rather than the Commission nationale de l'informatique et des libertés (the French Data Protection Authority) over the issue of how far, geographically, Google’s obligation to comply with orders to de-reference links extended. The CNIL had ordered Google to remove results from all versions of the search engine, whatever the domain name extension, and imposed a penalty of €100,000 when Google failed to do so. Google pursued the issue, which therefore came to be decided by the Court of Justice of the European Union: that court concluded that Google was only required to de-reference results from versions of the search engine with domain names corresponding to the Member States of the European Union. However, although Google was not required to de-reference the results from all versions, it was also required to take steps to prevent or seriously discourage an internet user who searches from one of the Member States from gaining access to the de-referenced data via a version of the search engine outside the European Union.

The Court noted that, due to its decision in Google Spain and Google, a person did have the right in certain circumstances to have their data de-referenced from searches, which has come to be referred to as the “right to be forgotten”. That right permits individuals to assert their right to de-referencing against a search engine operator as long as that search engine in the territory of the European Union, whether the actual data processing takes place in there or not. They also noted that directives and regulations had been made aimed at guaranteeing a high level of protection of personal data throughout the European Union, and that “a de-referencing carried out on all the versions of a search engine would meet that objective in full” (para 55). Indeed, they observed that the European Union Legislature could create a rule saying that de-referencing had to take place worldwide:

56      The internet is a global network without borders and search engines render the information and links contained in a list of results displayed following a search conducted on the basis of an individual’s name ubiquitous (see, to that effect, judgments of 13 May 2014, Google Spain and Google, C131/12, EU:C:2014:317, paragraph 80, and of 17 October 2017, Bolagsupplysningen and Ilsjan, C194/16, EU:C:2017:766, paragraph 48).

57      In a globalised world, internet users’ access — including those outside the Union — to the referencing of a link referring to information regarding a person whose centre of interests is situated in the Union is thus likely to have immediate and substantial effects on that person within the Union itself.

58      Such considerations are such as to justify the existence of a competence on the part of the EU legislature to lay down the obligation, for a search engine operator, to carry out, when granting a request for de-referencing made by such a person, a de-referencing on all the versions of its search engine.

They carried on to find, however, that no such rule had in fact been created. The Union, or indeed individual states, could create such a rule if they chose, but that was not the current state of the law. They acknowledged that “numerous third States do not recognise the right to de-referencing or have a different approach to that right” (para 59), and that

60…the right to the protection of personal data is not an absolute right, but must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality …Furthermore, 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.

Accordingly, a de-referencing order did not apply to all versions of the search engine. It did apply to more than the search engine corresponding to the domain from which the search was made, however, and therefore was in force in all Member States. This was justified on the basis of regulations meant to “ensure a consistent and high level of protection throughout the European Union and to remove the obstacles to flows of personal data within the Union” (para 66).

In part it seems that the decision was influenced by technological change Google had already made to “steer” users into the appropriate search engine. The Court noted that:

42      During the proceedings before the Court, Google explained that, following the bringing of the request for a preliminary ruling, it has implemented a new layout for the national versions of its search engine, in which the domain name entered by the internet user no longer determines the national version of the search engine accessed by that user. Thus, the internet user is now automatically directed to the national version of Google’s search engine that corresponds to the place from where he or she is presumed to be conducting the search, and the results of that search are displayed according to that place, which is determined by Google using a geo-location process.

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