The war over the “Right to be Forgotten” continues to rage in Europe. In defiance of the French data protection regulator, Google has refused to comply with the National Commission on Informatics and Liberty (CNIL)’s order to delist personal information from its global search results.
The CNIL order was issued in June 2015 after Google failed to delist information from its global Google.com search results. It did delist them from its European versions of Google search as a result of the European Court of Justice’s 2014 decision in Gonzalez. That case granted European citizens the right to demand that search engines remove links to information about them that is inadequate, irrelevant, no longer relevant or excessive. According to Google, since the decision was released, it has processed over a quarter million requests for delisting over a million URLs. The search engine giant has granted about 41% of those requests – but only by delisting the information from the European versions of Google search, not globally. According to CNIL, in order to be effective, delisting must be carried out on all extensions of the search engine. Google was given 15 days to comply or face sanctions.
On July 30th, Google posted on its European blog that it would not comply with CNIL’s request because it creates serious chilling effects on the web and asked the regulator to withdraw the order. According to Peter Fleischer, Google’s Global Privacy Counsel, global laws on the legality of web content differ widely. For example, Thailand outlaws the speech that is critical of its King, and Russia criminalizes what is deemed to be “gay propaganda”. Fleischer said that applying local laws to global search results would result in the Internet being only “as free as the world’s least free place”. In response, CNIL said it will look into Google’s appeal and decide whether to accept it in two months.
Google’s decision to defy CNIL’s order highlights the inherent controversy underlying the application of the Right to be Forgotten in the global context. Applying local privacy laws to content hosted in foreign jurisdictions makes it difficult for individuals to deal with damaging personal information that appears in global search results (see our earlier blog post). However, free speech advocates, such as the Electronic Frontier Foundation, decry the Right to be Forgotten as an assault on citizens’ rights of access to information.
A number of commentators also point out that Google already removes links to content from its global search engines in response to takedown notices for copyright infringing content, and on a much larger scale. In the past month alone, Google received over 53 million requests to remove content from its search results due to copyright violations. Google claims to remove about 97% of the search results specified in these requests.
The debate over the Right to be Forgotten is a reminder of the difficulties of protecting digital privacy in the global context. The French CNIL’s decision is not unique. As we previously blogged, in June, 2015, the BC Court of Appeal assumed jurisdiction over Google and ordered it to remove links to the websites of a company accused of trademark infringement from its search results worldwide. Similarly, a recent Russian privacy law expands the jurisdiction of Russian courts over search engines, as long as they are running ads targeting Russian users. The controversial law requires search engines to remove links to information that is “untrustworthy,” “no longer relevant,” or “distributed in violation of the law,” at a personal request.