January 13, 2019
- Summary:
- The EU's Right To Be Forgotten should only apply to the EU, according to a leading European legal advisor.
But last week saw the tech giant score what could become a very important victory, one which once again highlights the chasm between the US and Europe when it comes to data privacy policies.
Essentially a senior EU legal advisor, Macieg Szpunar, has concluded that the Union’s controversial Right to be Forgotten only applies to Europe and not, as some European politicians and activists have been demanding, to the US and other non-EU territories.
The Right To Be Forgotten allows EU citizens to demand that search engine providers remove links to content that is inadequate, irrelevant or excessive. It applies to the 28 member states of the EU. Google has received over 2.5 million requests for data erasure since the requirement was introduced in 2014.
Szpunar is Advocate General of the European Court of Justice (ECJ), Europe’s highest court. While his opinion is not legally binding, the European Parliament typically accepts and legislates in accordance with ECJ views and rulings. According to an ECJ statement, Szpunar took the view that:
a distinction must be made depending on the location from which the search is performed. Thus, search requests made outside the EU should not be affected by the de-referencing of the search results. He is therefore not in favour of giving the provisions of EU law such a broad interpretation that they would have effects beyond the borders of the 28 Member States. The Advocate General thus underlines that, even though extra-territorial effects are possible in certain, clearly defined, cases affecting the internal market, such as in competition law or trademark law, by the very nature of the internet, which is worldwide and found everywhere in the same way, that possibility is not comparable.
According to the Advocate General, the fundamental Right To Be Forgotten must be balanced against other fundamental rights, such as the right to data protection and the right to privacy, as well as the legitimate public interest in accessing the information sought. The Advocate General continues that, if worldwide de-referencing were permitted, the EU authorities would not be able to define and determine a right to receive information, let alone balance it against the other fundamental rights to data protection and to privacy…There would be a risk, if worldwide de-referencing were possible, that persons in third States would be prevented from accessing information and, in turn, that third States would prevent persons in the EU Member States from accessing information.
Why does this matter?
The Advocate General’s opinion was issued as the culmination of a conflict between Google and France’s privacy regulator, the National Commission for Information Technology and Civil Liberties (CNIL). Google was hit with a €100,000 fine by CNIL for not removing a person’s name from all of its global domains, arguing (correctly) that it was only required to geo-block on EU domains.
Why is this important? Flash back to 2014 when the European Court of Justice’s (ECJ) 28 members ruled on a complaint from Spanish citizen Mario Costeja Gonzalez. He wanted the removal from Google search listings of an old notice detailing his social security debts, which had been placed in a newspaper to announce a property auction being held to recover debts. The court determined that Google was the “controller” of the data and as such it was responsible for removing unwanted links if and when requested to do so.
EU privacy activists welcomed the decision, while others pointed out the dangers associated with the ruling. While there is a need for citizens to be able have recourse to remove untruthful or libellous data published online, there’s also the downside that the right to be able to force search engines to ‘forget’ uncomfortable facts is something that is welcomed by criminals, politicians and others with vested interests.
For good reason, Wikipedia founder Jimmy Wales dubbed the ECJ decision as “one of the most wide-sweeping internet censorship rulings that I’ve ever seen”, while Sir Tim Berners-Lee, ‘father’ of the World Wide Web warned:
The Right To Be Forgotten seems draconian when it’s about removing information that is true. The idea that information which is true can be removed from public record is frightening. A lot of the stuff that the media writes up today will be 404-ed in a few years!
Of course if something’s untrue, you have a right to have it taken down.
I live half the time in Europe and half in the US and the Right To Be Forgotten is seen very differently on the two sides. Freedom of speech is fundamentally part of the US Constitution. The idea that you could stop someone saying something true is just anathema.
That last comment was made before anyone had ever used the phrase ‘Fake News’ - to describe a news story they don’t like and would like ignored - or senior White House advisors could brazenly talk about “alternative facts” and still be taken seriously by the media and a tranche of the electorate.
In fact in 2019, there’s a strong argument to be made that the Right To Be Forgotten would be very welcome to the architects of a Fake News world and that efforts by France to make the US fall in line with its rulings could be seen as an own goal, given Europe’s publicly-expressed displeasure with the US stance on data privacy and management.
Mind you, this isn’t the first time that the French authorities have appeared to be increasingly out-of-step with other parts of the EU on digital economy matters. Last September, CNIL attorney Jean Lessi told a panel at the ECJ that Europe’s laws had to be extended worldwide:
We cannot simply limit those rights to the European frontiers.
But the European Commission found itself in the unusual position of backing Google’s case. Antoine Buchet, a lawyer representing the Commission slapped down the idea of ‘extra-territoriality’ being pushed by France:
It’s intellectually difficult to enter into that logic and give a universal effect to [content] removals.
More recently, France’s demands for sweeping changes to taxation of digital services providers, which would primarily hit US firms, have been resisted by other EU countries.
My take
A common sense opinion from the Advocate General which, barring some major break with precedence, will become a more formal ruling from the ECJ in the coming months.
There is an absolute need for the rights of citizens to be able to defend truth, particularly in an age when ‘facts’ are rewritten in the space of an early morning twitter tantrum. But the EU Right To Be Forgotten is, at best, deeply flawed. If the EU chooses to inflict it on its own states, so be it. But there’s no mandate for demands for bad law to be exported and imposed on other countries.