The Right Side of the Right to be Forgotten

In the summer of 2014, the European Court of Justice ruled that individuals have the "Right to be Forgotten." That is to say, the Court ruled that people have the right to ask a search engine to remove links that contain personal information about them. The Right to be Forgotten — or RTBF — can only be exercised under certain conditions, such as when the information is inaccurate, outdated or otherwise irrelevant, but this limitation has not made the ruling any less controversial.

The Internet search provider Google is, of course, front and center in the debates surrounding the definition and extent of the RTBF. Indeed, it was Google’s unwillingness to remove the digital footprint of a Spanish national who took issue with the fact that a Google search turned up information about an outdated legal matter that caused the court to examine this extension of human privacy rights. The Court’s ruling brought the RTBF into being, and in so doing, it opened up some rather massive virtual floodgates.

Thousands upon thousands of requests to remove names from search results, a process often referred to as "delisting," have poured into Google’s now-automated removal request system, and the Google Advisory Council on the Right to be Forgotten has been forced into a discussion with the Court about just exactly where and when information should be delisted. Indeed, the question of where is now at the heart of the most recent dilemma caused by the RTBF.

When a person types "www.Google.com" into their web browser’s navigation bar, they are automatically directed to their country’s main Google page. For example, people in the United States are directed to www.Google.com, people in the United Kingdom are directed to www.Google.co.uk, people in Australia are taken to www.Google.com.au, and so on.

It is Google’s belief that localized delisting is an effective and acceptable response to a delisting request, and that the information may still be published on non-European Google domains — like Google.com — without going against the Court’s ruling. The EU does not concur.

Both sides of this argument make a fair bit of sense. The EU has inferred that the ability to use an alternate version of Google to access locally delisted information makes the RTBF virtually impossible to truly enforce. While this may be true, it is also true that the EU cannot force the whole of the Earth to comply with its own views on the extent of a person’s right to privacy.

This problem is known as the question of extraterritoriality, and it is going to be a very difficult question to answer. In a recent report, the Council notes that the Court’s ruling does not specifically address the issue of whether a delisting applies to more than just the European-directed search services. Officially, the report states that, "in the current state of affairs and technology," a limited delisting is sufficient, noting that "over 95% of all queries originating in Europe are on local versions of the search engine."

That report, based on a majority opinion, includes a section in which individual members of the Council may dissent. German MP Sabine Leutheusser-Schnarrenberger does just that, stating that she believes delisting from all domains "is the only way to implement the Court’s ruling, which implies a complete and effective protection of a data subjects’ rights." She goes on to argue that in the case of a global Internet, the protection of one’s rights must be global.

France’s CNIL — the French data protection authority — is preparing injunctions and sanctions for a legal battle with the search giant if its requests for national delisting are not granted, and there will surely be other penalties from similar powers in other nations if Google continues to oppose the EU’s interpretation of the Court’s ruling. The company is no stranger to legal confrontations, and its own legion of lawyers is surely preparing for any eventualities.

There’s no telling who’s on the side of righteousness in this fight. Indeed, there may not be one. Does the right to privacy supersede the right to free speech? Is one of these human rights more basic than the other? That may have to be decided in court. Wherever the decision is made, it will not be an easy one.