Most people know that there would come a day where Google would have to allow people the ‘right to be forgotten’. This was ordered by the French, but Google has yet to comply with this order. It is believed that this is because Google had expected it to be a European order only, but it was actually meant to be a global one, something that the internet giant was not prepared to do.
Google is rejecting an order by the French data privacy agency to remove search results worldwide upon request, saying European law allowing the ‘right to be forgotten’ doesn’t apply globally.
In fact, the company itself stated that allowing for this to be established would mean the internet would suddenly become as ‘free as the least free country’ in the world. However, it now seems as if someone will have to give.
The Commission Nationale de l’Informatique et des Libertes, known as CNIL, issued an order in May of this year. In it, they stated that Google would have to apply data protection laws as they exist in Europe outside of European domains. Exactly one year before that, in May 2014, the European Court of Justice, the highest court on that continent, determined that if someone in Europe wanted to have links to content removed, Google would have to comply with that. This is when the right to be forgotten rule was first established.
[It] reflects the claim of an individual to have certain data deleted so that third persons can no longer trace them. [It is] the right to silence on past events in life that are no longer occurring.
However, when it was first established as a rule, it only applied to domain names in Europe, such as google.nl or google.fr. It did not apply to the full google.com domain.
Unsurprisingly, the decision and the issue as a whole have been hotly debated ever since. It was noted by observers that if rules were applied to domains in Europe, they would quickly also be enforced outside. After all, that would be the only way to truly establish a right to be forgotten. Since the new CNIL ruling in May, this has not just become a hot topic again, it has also become a reality. Naturally, Google has appealed the decision and is currently refusing to apply the ruling. In fact, they have made a very public statement about this.
This is a troubling development that risks serious chilling effects on the web. While the right to be forgotten may now be the law in Europe, it is not the law globally. Moreover, there are innumerable examples around the world where content that is declared illegal under the laws of one country, would be deemed legal in others. We believe that no one country should have the authority to control what content someone in a second country can access. We also believe this order is disproportionate and unnecessary.
Google, in this matter, is portraying itself as a picture of perfection in terms of what its roles and responsibilities are. It has looked through over 250,000 individual requests, leading to the take down of well over a million individual links. It has also made sure that full transparency has been available on its actions and it has made sure that it has never delayed any request unnecessarily. It has stated that every time a request would be submitted that met the European Court’s criteria (information has to be deemed irrelevant, inadequate, not in the public interest or excessive), it takes the name of the individual out of any Google search results in European versions. Furthermore, Google has started the Global Privacy Counsel in order to offer even further transparency.
Internet censorship is a huge topic right now, and has been for a few years already. Google feels that a single country does not have the right to control was people from other countries are able to see. For instance, in Thailand, it is illegal to make any negative comments about the royal family. Should the ruling by CNIL be enforced, therefore, any website anywhere in the world that would mention the Thai royal family would have to be removed. Similarly, countries like Russia would be able to request the removal of any website that supports the LGBT movement. Other countries, like China, have appalling human rights records, and they could use this to further take down elements of the internet.
Experts, however, feel that this is not an emotive issue to be contended with. Rather, it is a very simple and empirical one. Ninety seven percent of searches in France are completed through google.fr, not through any other Google domain. This means that Google may indeed have a point in stating that widening the reach to global Google would actually change nothing for the French. But it may just change everything for the world.
Google feels that it has been highly collaborative with the rulings by CNIL and it is keen to continue to have a dialogue with them in order to identify a mutually acceptable solution. When Google refers cases to CNIL or to various other data protection authorities, this can usually find agreement on the vast majority of cases. Google wants to remain open and transparent and hopes that this relationship will continue to exist.
CNIL, however, feel they are representing the law and are implementing it properly. They also believe that Google may have some degree of other motivation.
We note that Google’s arguments are partly political. Those of C.N.I.L., in turn, were based strictly on legal reasoning.
If Google does not comply with the rulings of CNIL, it will be penalized by having to pay some small fees. Furthermore, there is a chance that it will end up in lengthy legal battles. Because Google is trying to turn its image in Europe into a more positive one, this is not a welcome development. Scrutinizing Google on a global level is likely to continue for some time. Whether there will be a global ‘right to be forgotten’, however, will remain to be seen.