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The European Court of Justice Limits the Right to be Forgotten

On September 24, 2019, the European Court of Justice (ECJ), Europe’s highest court, held that the operator of a search engine is not required to carry out delisting on all versions of its search engine. The ECJ stated that even though search engines are not required to delist content globally, search engines should prevent or discourage Internet users within Member States of the European Union from searching for users’ content on versions of search engines outside the European Union. This is the most recent development in the European Union’s “right to be forgotten,” a legal right that was first articulated in the 2014 Google Spain v. Agencia Española de Protección de Datos (AEPD) (Google Spain v. AEPD) decision.

Back in 2014, the ECJ held in Google Spain v. AEPDthat Internet users have the right to be forgotten. If webpages found with search engines appear to be “inadequate, irrelevant or no longer relevant, or excessive,” the webpages can be delisted. Since the ECJ’s ruling, the right to be forgotten was codified in Article 17 of the General Data Protection Regulation (GDPR). The GDPR states that search engines need to perform a balancing test in order to ensure that delisted content will not prevent freedom of speech, compliance with legal obligations, cause violations of public interest, preclude archiving of information, or limit the development of legal claims. As of 2019, Google received over 850,000 requests to delist content within three million webpages.

To comply with the right to be forgotten, search engines delist webpages with geoblocking. Geoblocking allows search engines to delist content by using geolocation signals to restrict access to webpageswithin Member States of the European Union, but not globally. For example, if a user in France wants an irrelevant article about financial troubles delisted from Google because it is the first article that appears when clients search for the user’s business, the irrelevant article will be delisted from but not Geoblocking will still allow the user’s clients in the United States to see the irrelevant article about financial troubles. Using geoblocking permits Google to comply with the European Union’s right to be forgotten, while still allowing Internet users outside the European Union to view delisted content.

The current case arose because France’s privacy regulator, Commission Nationale de l’informatique et des Libertés (CNIL), was unsatisfied with Google’s geoblocking approach and ordered the company to delist webpages globally or suffer a €100,000 fine. Google refused to comply and sued the CNIL. The case, Google LLC v. Commission Nationale de l’informatique et des Libertés (Google v. CNIL), was argued before the ECJ. Google v. CNIL charged the ECJ with clarifying its previous ruling in Google Spain v. AEPD to determine whether the right to be forgotten applies within Member States of the European Union or globally.

The ECJ’s ruling contributes to a global debate about how to exercise jurisdiction over technology companies. Countries regulate technology companies differently, which creates tension between freedom of speech and privacy laws. By recognizing that the Internet is global and countries have different freedom of speech and privacy laws, the ECJ decided not to superimpose the European Union’s right to be forgotten on the rest of the world. The ECJ stated, “it should be emphasised that numerous third [countries] do not recognise the right to de[listing] or have a different approach to that right.”

The United States does not recognize the European Union’s right to be forgotten because implementing such a government regulation would be unconstitutional under the First Amendment. Internet users in the United States have a right to publish and view webpages, even if users’ content is delisted in the European Union because it is inadequate, irrelevant, or excessive. The ECJ’s ruling takes a regional approach to Internet regulations by declining to assert that the European Union’s right to be forgotten is a standard that search engines need to implement globally.

It is worth noting that although the ECJ does not require search engines to delist webpages globally, it “does not prohibit such a practice.” Time will tell if search engines, facing the costs of maintaining regionally specific websites, will implement the right to be forgotten globally even absent a legal requirement. If that happens, search engines may face lawsuits from Internet users demanding a right to information. But for now, the repercussions of the right to be forgotten are limited to Internet users within Member States of the European Union.

Leetal Weiss

GLTR Case Comments Editor; Georgetown Law, J.D. expected 2020; California State University Channel Islands, B.A. 2016. ©2019, Leetal Weiss.