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The right to be forgotten is not global, court rules

The right to be forgotten enshrined by EU law does not apply globally for search engines such as Google, the Court of Justice of the European Union, CJEU, ruled on Tuesday in an emblematic case of conflict between the protection of privacy and freedom of expression.

However, that right applies throughout the European Union, the Luxembourg-based court stated.

The CJEU thus ruled in favour of Google in its dispute in France with that country’s regulator on information technology and freedoms, the Commission nationale de l’informatique et des libertés (CNIL). The Commission had fined Google 100,000 euros in 2016 for limiting the right to be forgotten to European versions of the search engine only.

“It’s good to see that the court agreed with our arguments,” Google said in a press release, expressing its gratitude to the various independent human rights bodies, media associations and other organisations worldwide that also weighed in on the matter.

The Right be Forgotten

Enshrined by the European Court in 2014, the right to be forgotten allows Europeans to obtain, under certain conditions, the deletion of links that show up in search-engine results when their names are inputted.

In its dispute with Google, the CNIL had contended that to be effective, the deletion of the links – known as de-referencing – should apply to all versions of the search engine worldwide.

The American group, supported by human rights and other organisations, had countered that it respected the right to be forgotten not only in the countries of European requesters but throughout the EU and that going beyond that would jeopardise freedom of expression. Moreover, it contended, that would also allow authoritarian countries to use this as a precedent to restrict access to certain types of information.

Google had appealed against its fine to the Council of State, France’s highest administrative jurisdiction, which in turn requested the opinion of the CJEU.

“Currently, there is no obligation under EU law for a search engine operator who grants a request for de-referencing (…) to carry out such a de-referencing on all the versions of its search engine,” the CJEU stated in Tuesday’s decision.

“However, EU law requires a search engine operator to carry out such a de-referencing on the versions of its search engine corresponding to all the Member States,” it stressed.

The de-referencing must “if necessary, be accompanied by measures which effectively prevent or, at the very least, seriously discourage an Internet user conducting a search” from gaining access “through a version of that search engine  ‘outside the EU’ to the links which are the subject of the request for de-referencing,” the Court added.

The CJEU also ruled on Tuesday on another case related to personal data that had been referred to it by the French judiciary – regarding de-referencing requests from private individuals that were rejected.

The CNIL had, in fact, refused to oblige Google to delete many links to articles on paedophilia convictions and to an Internet page showing a satirical photomontage of a female politician.

In its ruling, the CJEU stated that if the de-referencing request regarded a link containing “sensitive data”, the search engine itself must verify whether the inclusion of the link in the list of results was strictly necessary to protect the freedom of information of internet users.

Should the request have to do with data regarding a legal case, but relating to a previous phase of the case, the search engine must take all circumstances of the matter into consideration, the Court ruled.

These include the nature and severity of the infraction in question, the proceedings and result of the case, the time that has elapsed, the role played in public life by the subject concerned and his/her past behaviour, the Court explained.

The Brussels Times