THE DIGITAL RIGHT TO BE FORGOTTEN: NOT A GLOBAL PROTECTION

12/11/2019

The Court of Justice of the European Union, with two judgements of September 24, 2019, clarified the scope of the right to be forgotten: in examining a de-referencing request of web pages containing sensitive data, search engine operators are required to balance fundamental rights of the applicant with freedom of information of Internet users, not being also obliged to apply the de-referencing of such content on a global scale.

 

The events

The decisions of cases C-507/17, Google v. CNIL, and C-136/17, Google and Others v. CNIL, both concerned the Google search engine.

The first judgment (C-507/17) regards a penalty imposed in 2016 by the French Data Protection Authority (CNIL) on Google, following its refusal to de-referencing a certain content from all its search engine’s domain name extensions, limiting it to versions relating to EU Member States only. Google appealed the decision before the French Council of State, which referred the question of the territorial scope of the right to be forgotten to the Court of Justice.

With the second decision (C-136/17), the Court, once again requested by the French Council of State, following an appeal by a group of individuals contesting the CNIL’s refusal to take action against Google for the removal of sensitive data, was called to rule on the conditions under which search engines must comply with de-referencing requests of web pages containing sensitive data.

The Court’s decisions

The Court ruled establishing that there is no obligation arising from the European Union law to provide for a global de-referencing, but only limited to search engine versions relating to the Member States of the Union.

The relative scope of the right to be forgotten has also been further clarified: upon the receipt of a de-referencing request of sensitive data on web pages, it will be necessary to find a balance with other fundamental rights, such as the right of public access to information.

The background

The right to be forgotten has never been presented as an absolute right; affirmed by the same Court in 2014 with the memorable decision Google Spain, was then specified by GDPR 2016/679, the EU Regulation on the processing of personal data and privacy, which emphasized the importance of balincing such right, by applying the principle of proportionality, with other fundamental rights, providing for a limitation of the right to erasure of sensitive data in order to protect the freedom of expression and information.

The territorial scope

The Court has pointed out that the application of the right to be forgotten is not allowed to transcend the boundaries delineated by the territoriality of the law and jurisdiction, although it believes would be desirable to achieve a global de-referencing result, for instance through cooperation mechanisms activated between national authorities. However, a similar solution appears difficult to attain, given the discordant recognition and fragmented application of the right to be forgotten worldwide.

The examination of de-referencing requests

The European Union legislation does not provide for an automatic fulfillment of de-referencing requests.  In fact, the search engine receiving a de-referencing request, will be expected to balance the rights of the individual applicant and the rights of digital users, by weighting factors such as the nature of the concerned information, its impact on the private life of the individual or the public role assumed by the latter, the potential obsolescence of the information as well as the presence of reasons of public interest to its accessibility.

Implications

Both decisions raise the challenge of drawing a line between the protection of the individual right to privacy and the access to information and freedom of expression.

While the global application of the right to be forgotten could lead to the possibility of restricting freedom of information, the transnational nature of the Internet could in fact undermine the effectiveness of national or Community measures intendend for the protection of certain fundamental rights.