Google’s battle against French proponents of a worldwide “right to be forgotten” enters a decisive phase at the European Union’s top court on Thursday, in a case that highlights the growing tensions between privacy, freedom of speech and state censorship.
Ahead of a ruling later this year, an adviser at the EU Court of Justice will on Jan. 10 deliver an opinion on whether the world’s most-used search engine can limit the geographical scope of the privacy right to EU-based searches.
Google has been fighting efforts led by France’s privacy watchdog to globalize the right to be forgotten after the EU court’s landmark ruling in 2014 forcing the search engine to remove links to information about a person on request if it’s outdated or irrelevant. The Alphabet Inc. unit currently removes such links EU-wide and since 2016 it also restricts access to such information on non-EU Google sites when accessed from the EU country where the person concerned by the information is located.
The worldwide solution would put global search engine providers “slap bang in the middle of a conflict of law problem, where on the one hand they might be subject to an obligation to enable freedom of speech, and in the EU they’d be invited to suppress it,” Richard Cumbley, global head of technology at law firm Linklaters, said by phone.
France’s Conseil d’Etat, the nation’s highest administrative court, sought the EU tribunal’s guidance in 2017 about whether the right to be forgotten could be extended beyond the EU. In a second case, it asked questions about the obligations of search engine operators when faced with delisting requests of links to sensitive data, such as sexual orientation, political, religious or philosophical opinions and criminal offenses, that “is embedded in a press article or when the content that relates to it is false or incomplete.”
“The decision will have significant implications for businesses that rely on referral traffic from search engines, particularly in the media,” said Peter Church, a technology and privacy lawyer at Linklaters. “The decision could also have implications for other businesses, particularly data brokers or those that handle sensitive personal data, if the principles in the decision have broader application.”
The U.S. company has been asked to delete links to 2.9 million websites, after the EU court effectively put the search engine in charge of deciding what requests to accept. It has agreed to less than half of them. People unhappy with Google’s refusal to remove a link can turn to privacy regulators.
France’s data protection regulator, CNIL, started a probe into Google’s actions based on complaints and ended up slapping the search giant with a fine of 100,000 euros (US$114,000) for failing to remove links from its global websites as well. The case ended up in France’s top administrative court, which in 2017 referred its questions to the Luxembourg-based EU judges.
Google has raised the alarm about the cases more than once. It’s Chief Legal Officer, Kent Walker, in a 2017 blog post said the cases “represent a serious assault on the public’s right to access lawful information.” A few months earlier, Peter Fleischer, Google’s senior privacy counsel said the right created by the EU court remained just that, an EU right, not a global right.
Walker warned that the obligation to enforce the right to be forgotten in every country around the world “would encourage other countries, including less democratic regimes, to try to impose their values on citizens in the rest of the world.”
Google declined to comment ahead of Thursday’s court opinions.
The EU court’s 2014 ruling never defined how, when and where Google should remove links -- and this has triggered a wave of new legal challenges. A London court last year told Google to remove news reports about businessmen’s criminal convictions, in line with an English law that aims to aid people to put past crimes behind them. Paris judges also told Google last year to reduce the visibility of stories about a former chief financial officer fined for civil insider-trading violations.
While the right to be forgotten concerns all search engines, Google’s dominance in Europe means the company has taken center stage.
The EU court follows the advice of its advocates general in a majority of its final rulings, which normally come a few months after the opinions.
The cases are: C-507/17, Google (Portee territoriale du dereferencement);C-136/17, G. C. e.a. (Dereferencement de donnees sensibles).
--With assistance from Giles Turner.