A global right to be forgotten?

In its (in)famous Google Spain judgment in 2014, the CJEU breathed life into the right to be forgotten. That right – explicitly preserved in the GDPR – is one of the more divisive limbs of EU data protection law: it is good for privacy, but it can be very bad for freedom of expression. That concern is drawn out sharply in current litigation between Google and the French data protection authority, Commission Nationale Informatique et Libertes (CNIL). The crux of the dispute is this: does your EU-given right to be forgotten apply across the whole world?

The background is that, in 2014, CNIL ordered Google to ensure that 21 specified weblinks were not returned in search results for a named individual. Google complied in respect of its French site, and then in terms of its other EU websites. It later also delisted those links when its non-EU search engines such as google.com were used within the EU. This was not good enough for CNIL. It fined Google €100,000 because those some links were returned against Google searches of the individual’s name undertaken on non-EU Google search engines outside the EU.

CNIL argued that the right to be forgotten is undermined if it evaporates once you step outside the EU. True privacy is global.

Google has challenged that fine before the French courts. It argues against a global, one-size-fits-all decision on how to balance privacy and freedom of expression. The balance may differ in different parts of the world. Privacy may be a global good, but it should not automatically prevail on every battleground. (For an article from this standpoint, see this in The Washington Post).

Google’s case reached France’s highest administrative court, the Conseil d’Etat, last week. Interventions were filed by no fewer than 18 NGOs from across the world, with particular concerns emanating from civil society organisations in developing countries. (See a synopsis of those concerns in this brief on the Doughty Street website).

Late last week, the French court referred the issue to the CJEU,which will in due course decide whether EU decisions on the right to be forgotten apply globally.

Interventions will again be legion, given the diversity of attitudes to the right to be forgotten, both within and without the EU. The case will be extremely important not only in terms of the free expression-versus-privacy debate, but more broadly in terms of the reach of the EU’s data protection regime. That regime is admirably ambitious, but it is by no means clear that it can – or should – achieve global hegemony.

Robin Hopkins @hopkinsrobin