European Court Limits Right-to-Be-Forgotten Delisting to EU Domains. For Now…

Written by Jens-Henrik Jeppesen

This week, the Court of Justice of the EU issued an eagerly awaited and crucially important ruling involving competing fundamental rights of privacy and free expression. Asked whether search engines were required to implement right-to-be-forgotten (RTBF) delisting of search results globally, the Court said no. That is the short version of the ruling, and the answer CDT and other human rights advocates had urged the Court to give.

The case originated in a dispute between Google and the French Data Protection Authority (CNIL). In this case, CNIL ordered Google to implement global delisting of certain online content following complaints by French citizens. CNIL did not accept Google’s proposed delisting limited to French and European domains and issued a fine for failure to comply. Google appealed the case, which was ultimately referred to the CJEU for interpretation. CDT joined a coalition of free expression organisations from around the world, led by Article 19, in filing an intervention in the case in November 2016, before the French State Council.

The gist of our argument was that forcing search engines to implement RTBF on a global basis would cause disproportionate infringement of rights to free expression and access to information, including in countries where the RTBF concept does not exist. The broader policy argument is that it would be detrimental to free expression rights if states were able to impose restrictions on permissible speech outside their own territory.

CDT and the organisations we filed our intervention with were pleased with the outcome of the case, in that the ruling confirmed that compliance with EU legislation does not require global delisting. However, the ruling also stated that while global delisting is not mandated by law, it is also not excluded, and national authorities may apply national standards for the protection of fundamental rights to case-by-case considerations of whether a global de-listing order is appropriate. This means that a different case, with a different weighing of rights, could lead a European court to a different conclusion. In addition, the ruling remarks that EU law makers might in the future pass legislation that would require global application. Still, while the last word has not been spoken on this important matter, the CJEU’s ruling shows a welcome recognition of the free expression issues at stake.

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