A recent non-binding opinion from an European Court of Justice advocate general recommends limiting the extraterritorial effect of the E.U.’s right to be forgotten in an effort to establish precedent that could serve as a counter to future actions by other countries. While not specifically stated in the opinion, it appears that this opinion has an eye towards the ramifications that the right to be forgotten might have in the hands of more authoritarian countries. In this way, the E.U. is chosing to have its own version of the internet rather than face the possibility of having a version that has been sanitized by dictators.
On January 10, 2019, Advocate General Maciej Szpunar recommended that Europe’s “right to be forgotten” not include a right to compel the deindexing of search results outside the E.U. The case in question arose from a notice from the French data protection authority, CNIL, to Google in 2015. CNIL demanded that Google make deindexing requests from French citizens applicable to all of Google’s country-specific search engines, globally. However, Google refused to comply, instead continuing the its practice of deindexing only results within the E.U. Google also proposed to implement an additional process it labeled “geo-blocking,” by which Google would make certain search results unavailable on all of its domains if the user’s IP address placed that user within the E.U. CNIL found this additional mechanism to be insufficient and took its case to the ECJ.
Google, along with third parties filing briefs including Wikimedia Foundation Inc., the Foundation for Freedom of the Press and Reporters Committee for Freedom of the Press, argued that CNIL’s proposed ruling would create a dangerous precedent that could invite other countries outside the E.U., including authoritarian regimes, to also mandate global implementation orders of deindexing requests, resulting in censorship.
Attorney General Szpunar agreed, drawing a line between application of deindexing requests to domains within the E.U. and extraterritorial domains. He stated that searches originating outside the E.U. should not suffer from E.U. deindexing requests. Further, he agreed that the embrace of a right to global deindexing would be a dangerous green light for other countries to adopt deindexing laws, which could ultimately result with an interference of the right to free expression within E.U. and throughout the world.
Attorney General Szpunar also made clear that the effect of a deindexing request would remain quite strong within the E.U. A.G. Szpunar was quite clear that Google would still be required to take any measure at its disposal, including all technically possible controls, to ensure a complete deindexing within E.U. territory, specifically including geoblocking.
This new opinion from the E.U. is similar to the position taken by Canada’s Privacy Commissioner with respect to its nascent right to be forgotten. Canada is currently considering whether its privacy law, PIPEDA, contains a right to request deindexing as written. While it is not clear if the decision of that case will include an analysis of extraterritorial deindexing, the Office of the Privacy Commissioner has separately recommended that search engines be required only to deindex search results from Canadian domains (e.g., google.ca) as well as employ geoblocking.
Of course, none of these steps is certain to deter authoritarian regimes from ordering Google or other search engines to globally deindex results about their citizens, potentially including public figures. The January 10, 2019 opinion seems to acknowledge that fact, seeking only to prevent the sending of a signal to other countries that global deindexing requests are permissible. Accordingly, it remains to be seen whether the right to be forgotten will become a weapon of misinformation online.
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