In a September 2014 decision, a French judge ruling in injunctive proceedings held that all Google search engines accessible in France — regardless of their extensions — are subject to de-indexing. The EU Working Party’s Guidelines on the right to be forgotten have also taken this position.
On September 16, 2014, the Paris Civil Court found Google’s French subsidiary liable for the processing of personal data carried out by Google Inc., the US parent company that operates the search engine. This decision relies on the same reasoning as Google v. Costeja (decision C-131/12 of the European Court of Justice (ECJ), dated May 13, 2014).
The plaintiffs alleged that a search for their names brought up links to websites containing statements about plaintiffs that were held libellous in a French criminal court judgment rendered in May 2014. Google refused to grant plaintiffs’ request to remove those links from the list of results. Plaintiffs then sued Google France, essentially for injunctive relief, and the court ordered Google France to pay a daily fine of €1,000 until the links to the libellous story are removed from Google Inc.’s entire network. In other words, the French judge held that all Google search engines accessible in France are subject to the delisting order, and not just Google search engines in the EU e.g., google.fr or google.de.
This solution is in line with the Article 29 Working Party’s guidelines, which consider that “limiting the de-listing to EU domains (…) cannot be considered a sufficient mean to satisfactorily guarantee the rights of data subjects according to the [Costejadecision]. In practice, this means that in any case de-listing should also be effective on all relevant domains, including .com“.
Although these clarifications are welcome, they also raise concerns in respect of the scope of liability faced by European establishments of non-European search engine operators. Google France is now responsible for removing the contentious links in various jurisdiction although it does not operate the relevant search engines. Consequently, assuming Google France complies with the court order and removes the links from google.fr, it may still be held liable for not removing the links from Google search engine results on other extensions. There are also concerns that the implications of the French order in terms of liability may be broader and affect every global organisation with an establishment in France.