The so-called “right to be forgotten” is climbing back up the news agenda. It all stems from a landmark decision by the European Court of Justice mandating that European citizens have a right to demand that links to online material about them that are deemed to be misleading or inaccurate should not appear in Google search results.
The judgement came as a surprise to most people and as a really big shock to Google. However, over the past year, the company has found a way of complying with the judgement — by setting up a process for handling requests for delisting and deleting successful applications from search results in all of its European search engines.
Leave aside for a moment the fact that the right to be “forgotten” is not a right to be forgotten — because the material in question still remains online. It is actually a right not to be found by Google. However, since most people in Europe use their local version of the company’s search engine (for example, www.google.co.uk or www.google.fr) and since Google had devised an efficient system for processing requests, it looked as though a pragmatic solution to a thorny problem had evolved.
Illustration: Mountain People
That problem is the disjunction between local laws and a global network. Although Google is a US-based company, it had no option but to comply with the European Court of Justice ruling because it trades with — and has assets in — all the countries in the EU.
However because it is based in the US, it also has to obey the laws of that nation. In the US, the first amendment to the constitution means that people take a very dim view of any interference with free speech. Sanitizing Google search results to comply with the rulings of a foreign court would certainly be perceived as such an interference. So while the right to be forgotten links are removed from for example, google.fr, they remain visible on search results from Google.com, which is easily accessible from any European nation.
It turns out that some of Europe’s data protection regulators are not amused by this.
On June 12, French data protection authority CNIL served Google with a formal notice stating: “The CNIL considers that in order to be effective, delisting must be carried out on all extensions of the search engine and that the service provided by Google search constitutes a single processing. In this context, the president of the CNIL has put Google on notice to proceed, within a period of 15 days, to the requested delisting on the whole data processing and thus on all extensions of the search engine.”
Google global privacy counsel Peter Fleischer is understandably rattled by the extraterritorial pretensions of the French.
“While the right to be forgotten may now be the law in Europe, it is not the law globally. Moreover, there are innumerable examples around the world where content that is declared illegal under the laws of one country, would be deemed legal in others: Thailand criminalizes some speech that is critical of its King, Turkey criminalizes some speech that is critical of Ataturk, and Russia outlaws some speech that is deemed to be ‘gay propaganda.’ If the CNIL’s proposed approach were to be embraced as the standard for Internet regulation, we would find ourselves in a race to the bottom. In the end, the Internet would only be as free as the world’s least free place,” he wrote in a blog post
Fleischer is right. The logical consequences of the French demands are absurd.
In the words of Harvard law professor Jonathan Zittrain: “France is asking for Google to do something here in the US that if the US government asked for, it would be against the first amendment.”
The French regulator’s order, if enacted, would “prevent Americans using an American search engine from seeing content that is legal in the United States,” he said.
Google is contesting the ruling, so there is likely to be a long legal wrangle. However, even if the French regulator eventually does prevail in the European courts, it is unlikely that the US administration would accept a judgement that so flagrantly contravenes the first amendment.
The issue would then return to square one — or at any rate to the point at which it first became clear that a global network designed to enable bits to flow effortlessly across territorial boundaries necessitates a new international legal order to regulate it.
How such an order would come about is difficult to envision, especially given that the US is as keen on extraterritorial powers as France. However, one thing is certain: Fighting it out through local courts is not the way to go.
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