EU Court to Rule on ‘Right to Be Forgotten’ Outside Europe

EU Court to Rule on ‘Right to Be Forgotten’ Outside Europe

Case could determine whether France can force Google to apply the right to be forgotten across the globe

By Nick Kostov and Sam Schechner Updated July 19, 2017 9:56 a.m. ET

PARIS—The European Union’s top court is set to decide whether the bloc’s “right to be forgotten” policy stretches beyond Europe’s borders, a test of how far national laws can—or should—stretch when regulating cyberspace.

The case stems from France, where the highest administrative court on Wednesday asked the EU’s Court of Justice to weigh in on a dispute between Alphabet Inc.’s Google and France’s privacy regulator over how broadly to apply the right, which allows EU residents to ask search engines to remove some links from searches for their own names.

At issue: Can France force Google to apply it not just to searches in Europe, but anywhere in the world?

The case will set a precedent for how far EU regulators can go in enforcing the bloc’s strict new privacy law. It will also help define Europe’s position on clashes between governments over how to regulate everything that happens on the internet—from political debate to online commerce.

France’s regulator says enforcement of some fundamental rights—like personal privacy—is too easily circumvented on the borderless internet, and so must be implemented everywhere. Google argues that allowing any one country to apply its rules globally risks upsetting international law and, when it comes to content, creates a global censorship race among autocrats.

“Each country should be able to balance freedom of expression and privacy in the way that it chooses, not in the way that another country chooses,” said Peter Fleischer, Google’s global privacy counsel. “We look forward to making our case at the European Court of Justice.”

The case exposes a deep trans-Atlantic divide over the role of regulations in everything from antitrust to personal privacy. In the U.S., the First Amendment forces officials to give broad leeway for free expression, even if objectionable. That makes it difficult for individuals to remove personal information gathered and published online by a slew of companies.

By contrast, Europe’s experience from World War II has led to laws banning Holocaust denial and hate speech. More recent experiences with East Germany’s police state have turned privacy into a fundamental right that can at times trump free expression.

The May 2014 decision granting the right to be forgotten reflects that division. That case concerned a Spaniard, Mario Costeja Gonzalez, who complained to privacy regulators about Google search links to a 1998 announcement in a Spanish newspaper mentioning debts that he had since resolved. The court said Google should remove the links from searches for Mr. Costeja’s name on privacy grounds.

The decision created a right for any EU resident to ask search engines to remove links from searches for their own names, if the information is old, irrelevant or infringes on their privacy. Google and other search engines vet requests, weighing privacy rights against the public interest in having that information tied to the person’s name.

After the decision, Google quickly applied the right in Europe, removing about 590,000 links from some searches in the last three years, according to its transparency report. But the company resisted applying those removals to its non-European sites, like Google.com. Under pressure, Google agreed to do so only when those searches were done from within the European country where the removal request originated.

But in 2015, France’s privacy regulator ordered Google to go further: applying its right-to-be-forgotten removals to all of its websites wherever they are accessed, arguing that it is simple for internet users to mask their location using proxy services. After the regulator fined Google €100,000 ($115,000) last year for violating the order, Google appealed to France’s Conseil d’Etat, the highest administrative court.

Google’s lawyer, Patrice Spinosi, argued to the Conseil d’Etat that Google’s current system for applying the right to be forgotten in Europe “is perfectly effective unless you want to be a fraudster,” saying the court should toss out France’s privacy order on more fundamental grounds, without even asking the EU court.

“This order would give global effect to a national authority, with a negative impact on free expression,” Mr. Spinosi told the court. “The danger is that tomorrow, it won’t be the French authorities making these decisions, but authorities in other countries that are less democratic than France.”

On Wednesday, however, the Conseil d’Etat said “the scope of the right to be forgotten poses several serious difficulties in the interpretation of European Union law.”


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