The case concerns the scope of orders made by data protection authorities against search engines to ensure their compliance with valid requests for de-referencing. The issue arose in proceedings involving the Commissione Nationale de l’Informatique et des Libertes (CNIL) and Google before the Conseil d’Etat (the Supreme Court of Administrative Justice and a legal advisory body to the government) in France. On 19 July 2017, the Conseil d’Etat decided to refer the case to the Court of Justice of the European Union (CJEU) for a preliminary ruling.
Essentially, the Conseil d’Etat asked whether the right to de-referencing (also known as the ‘right to be forgotten’) requires a search operator:
- to deploy de-referencing to all of the domain names used by its search engine, irrespective of the location from where a search is initiated;
- only to remove the links at issue from the results displayed on the search engine’s domain name corresponding to the Member State in which the de-referencing request is deemed to have been made (or, more generally, on all of the domain names used by that search engine corresponding to Member States of the European Union); and/or
- to use a ‘geo-blocking’ technique to remove the links at issue in response to any searches deemed to be located in the State of residence of the person benefiting from the ‘right to de-referencing’ (or, more generally, from any IP address deemed to be located in one of the Member States of the European Union), regardless of the domain name used by the internet user conducting the search.
This case presents the CJEU with an opportunity to correct some of the flaws in the Google Spain judgment between the right to be forgotten and freedom of expression online. Global delisting orders are inherently disproportionate. No court or data protection authority in the world should force its definition of lawful or acceptable information beyond their frontiers.
In the third party intervention, the NGO Interveners submit that:
- compliance with the ‘right to de-referencing’ obliges a search engine provider to remove the results displayed for searches made within the State of residence of the person exercising the ‘right to de-referencing’;
- it does not oblige a search engine operator to remove the results displayed on all of the domain names used by its search engine worldwide; and
- a search engine operator should only be required to de-reference results for searches made from within other Member States of the European Union where a national court or data protection authority is satisfied that such a step is necessary and proportionate in all the circumstances.