Applying the Right to Be Forgotten Outside the EU? Forget About It

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Applying the Right to Be Forgotten Outside the EU? Forget About It

January 11, 2019

Decision

The “right to be forgotten”, which enables claimants to request the removal of links to irrelevant or outdated online information about them, should not be enforceable globally, the Advocate General of the European Court of Justice (ECJ) has ruled in a non-binding opinion in Case C-507/17 Google v CNIL.

The right which mandates search engines to prevent access to material on the internet, should be enforceable only in the EU and not worldwide, the Court’s Advocate General, Maciej Szpunar, has ruled. Although Advocate General opinions are non-binding the judges of the ECJ will typically follow them.

Background

The ECJ had established the “right to be forgotten” in a landmark 2014 ruling relating to a Spanish citizen’s claim against material about him found on Google searches. This right is also spelled out in Article 17 GDPR. It allows European citizens to ask search engines to remove links to “inadequate, irrelevant or … excessive” content. Google has been inundated with millions of requests since then to remove material from online searches. In 2015 French privacy regulator CNIL ordered Google to expand its removals to any search regardless of location, which Google appealed in a French court. The matter then proceeded to the ECJ to determine whether the right to be forgotten could be applied extraterritorially.

Territorial effect

Szpunar noted that while the provisions of Directive 95/46 are intended to protect fundamental rights of the person and are subsequently referenced under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, they remain silent on the question of the territoriality of the dereferencing. He noted that neither these provisions nor the judgment in Google Spain and Google specify whether to treat a search request from Singapore differently than a request made from Paris. According to Article 52 of the Treaty on European Union (TEU), the Treaties apply to the 28 Member States. Szpunar found that outside this territory, European Union law cannot, in principle, apply or, consequently, create rights and obligations.

However, as CNIL pointed out in the reference to the ECJ, both EU competition law and EU trademark law can have territorial effect outside of EU Member States. Szpunar determined, however, that the enforcement of these areas constitutes an example of an exceptional nature. The Advocate General noted that the crucial point in both situations is the effect on the internal market (although other markets may also be affected).

He stated there would also be a danger of preventing people in third countries from accessing information and that if an authority within the European Union could order a global dereference, a cynical message would be sent to third countries, which could also order a dereferencing under their own laws. He hypothesized that if third countries interpreted some of their rights in such a way as to prevent persons located in a Member State of the EU from accessing the information sought, there would be a real risk of a collective leveling down, to the detriment of freedom of expression, at European and global level.

The ECJ judgment will follow in due course and it will be interesting to see whether the Court rule in the same manner as the Advocate General. The William Fry Technology Department will continue to monitor this case.