France’s Highest Court must respect free speech in “right to be forgotten” case

Today, 23 November 2016 – ARTICLE 19, together with Human Rights Watch, Electronic Frontier Foundation, Open Net Korea, Derechos Digitales, Reporters sans Frontières, the Canadian Internet Policy and Public Interest Clinic, the Center for Democracy and Technology, and PEN International, intervened in a case at the Conseil d’Etat, France’s highest administrative court, concerning the worldwide application of a national concept of “the right to be forgotten”. We urged the Court to consider international standards on freedom of expression when reviewing the case.

The so-called “right to be forgotten” usually refers to the possibility of having certain results, produced from an online search of one’s name, delisted from search engine results pages. In its 2014 decision, the European Court of Justice stated this should be done when such search results are ‘inadequate, irrelevant or no longer relevant’. Subsequently, Google adopted a practice of removing the contentious results from the European versions of their search engine, when they accepted delisting requests from users based in the EU. More recently, after the French regulatory authority for data protection (the CNIL) approved complaints from web users that the delisting was not sufficiently effective, Google decided to make contentious search results inaccessible to all web users located in French territory.

In a decision of 16 March 2016, the CNIL found the geolocation-based solution to implementing accepted delisting requests to be insufficient, and imposed a €100,000 fine on Google for restricting the removal of contentious results to only those web users based in France. In the CNIL’s view, the effective application of the “right to be forgotten” would require that the contentious search results be rendered unavailable to all web users, regardless of their location. In essence, this position is tantamount to having the French data protection authority determine what can be found on search engines worldwide.

ARTICLE 19 and other organizations have filed amicus curiae brief in support of Google’s petition to have the decision of CNIL quashed by the Conseil d’Etat. Our joint brief argues that the CNIL’s decision raises serious concerns under international law on freedom of expression.

We first note that the ECJ 2014 decision that serves as the basis for the elaboration of “the right to be forgotten” does not specify the geographical limits, or indeed extension, of its enforceability. We argue that the CNIL’s decision was not foreseeable and, as such, lacks legal basis under international standards on freedom of expression.

The brief relies on a comparative law analysis to demonstrate that there is no universal understanding of either the existence or the scope of “the right to be forgotten” and it has not been recognised by other international bodies. In this context, any attempt to impose a national concept at the global level is bound to create a disproportionate restriction on freedom of expression.

We also argue that the universal application of “the right to be forgotten” is not the least restrictive measure that can achieve the goal of protecting the rights of others at the national level. Enforcing universal delisting pays no consideration to the fact that the delisted results may well be protected by freedom of expression in other jurisdictions, where web users have a legitimate right to seek and receive these results, and the information they link to.

We suggest that global enforcement of locally distinctive rights, or domestic interpretations of rights granted under international law, will lead to conflicting decisions, and the erosion of the important principle of comity. Furthermore, the French decision might set a dangerous example for authoritarian regimes. A less democratic state might be tempted to follow the lead of the CNIL to wipe search engines clean, at the global level, of any content that is not agreeable to the regime.

In addition, the decision of the French court is likely to have a disastrous chilling effect on the free flow of information online. Search engines will be reluctant to face the burden of fighting similar decisions in court. Internet users will similarly be hesitant – if they even have a possibility of taking the matter to court. In any case, legal proceedings, if they take place in multiple jurisdictions, might lead to contradictory legal orders. Altogether, the result of the global enforcement of the “right to be forgotten” will be to encourage excessive delisting, and, as such, undermine the right of individuals to seek and receive information online.

ARTICLE 19 recently intervened in the comparable case of Google Inc vs Equustek Solutions Inc in Canada.

Read our submission (in French).