Is it time to forget about a global right to be forgotten?


28 Jan 2019372 Views

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The ECJ advocate general says the right to be forgotten should only apply in EU member states, but what way will the court rule?

The right to be forgotten, which enables claimants to request the removal of links to irrelevant or outdated online information about them, should not be enforceable globally, the advocate general of the European Court of Justice (ECJ) has ruled in a non-binding opinion in Case C-507/17, Google v CNIL.

The right, which mandates search engines to prevent access to material on the internet, should be enforceable only in the EU, ruled ECJ advocate general Maciej Szpunar.

Although advocate general opinions are non-binding, the judges of the ECJ will typically follow them.

What is the right to be forgotten?

The ECJ established the right to be forgotten in a landmark 2014 ruling relating to a Spanish citizen’s claim against material about him found on Google searches. This right is also spelled out in Article 17 of the General Data Protection Regulation (GDPR). It allows European citizens to ask search engines to remove links to “inadequate, irrelevant or … excessive” content.

Since then, Google has been inundated with millions of requests to remove material from online searches. In 2015, French privacy regulator CNIL ordered Google to expand its removals to any search regardless of location, which Google appealed in a French court. The matter then proceeded to the ECJ to determine whether the right to be forgotten could be applied extraterritorially.

Territorial effect

Szpunar noted that while the provisions of Directive 95/46 are intended to protect fundamental rights of the person and are subsequently referenced under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, they remain silent on the question of the territoriality of the de-referencing. He noted that neither these provisions nor the previous judgements specify whether to treat a search request from Singapore differently than a request made from Paris.

According to Article 52 of the Treaty on European Union, the Treaties apply to the EU member states. Szpunar found that outside this territory, European Union law cannot, in principle, apply or, consequently, create rights and obligations.

However, as CNIL pointed out in the reference to the ECJ, both EU competition law and EU trademark law can have territorial effect outside of EU member states. Szpunar determined, however, that the enforcement of these areas constitutes an example of an exceptional nature. The advocate general noted that the crucial point in both situations is the effect on the internal market (although other markets may also be affected).

Szpunar stated there would also be a danger of preventing people in third countries from accessing information and that if an authority within the European Union could order a global de-reference, a cynical message would be sent to third countries, which could also order a de-referencing under their own laws. He hypothesised that if third countries interpreted some of their rights in such a way as to prevent persons located in a member state of the EU from accessing the information sought, there would be a real risk of a collective levelling down, to the detriment of freedom of expression at European and global level.

The ECJ judgement will follow in due course and it will be interesting to see whether the court rules in the same manner as the advocate general.

By David Cullen, John Magee and Leo Moore

David Cullen is a partner at William Fry and head of the corporate law firm’s technology group, which includes partners John Magee and Leo Moore.

A version of this article originally appeared on the William Fry blog.