Global Application of French “Right to Be Forgotten” Law Would Pose Threat to Free Expression

Intern Emine Yildirim contributed to this post.

French data protection officials are asserting authority to censor search results around the world, in a dangerous move that imperils freedom of expression and access to information online. This was the message of the intervention, led by ARTICLE 19, that CDT joined in filing today with the French high court.

The case concerns Google’s implementation of the so-called “right to be forgotten” decision in Google Spain v. AEPD and Mario Costeja Gonzales, which established that an EU citizen can demand a search engine cease returning certain links to information about him for searches based on his name. (CDT’s analysis of this case and its troubling implications is here.)

Since that ruling, as Google and other search engines have developed processes to implement de-listing requests in Europe, France’s data protection authority, the Commission nationale de l’informatique et des libertés (CNIL) has pushed for the broadest possible application of the law. In March, under this pressure, Google began de-listing search results not only on google.fr, google.de, and its other EU domains, but also on all searches, on any domain, that appear to come from within Europe. (We discuss that policy change, and the potential risks of geoblocking content on global domains, here.)

Even this was not sufficient for the CNIL.  In March, it ordered Google to apply de-listing globally, so that no person, in any country, using any version of the search engine, would see a link about a French citizen that he had demanded be suppressed. Google refused to comply with this order, and the matter is now before France’s highest court, the Conseil d’État.

There are several important issues at stake in this case:

Extraterritorial reach of laws limiting access to information

The EU’s “right to be forgotten” allows individuals to demand de-listing of true, public, lawfully published information — speech, in other words, that falls within people’s right to “seek receive, and impart information . . . regardless of frontiers” under Article 19 of the International Covenant on Civil and Political Rights (ICCPR). While the French government may decide to limit French citizens’ access to lawfully published information under certain circumstances, it doesn’t have the jurisdiction to limit access by people outside of France to information lawfully published outside of France. A non-EU resident, for example, searching on Google.com for information that appeared in a US newspaper article, does not have any expectation that the CNIL could interfere with her access to that information.

Dangerous international precedent

The CNIL’s assertion of jurisdiction over all the world’s access to information is the wrong example to set for other governments that attempt to apply their national laws to the global internet. As we see from Google’s Transparency Report, governments around the world ask Google to block access to content that violates local laws concerning defamation, privacy, hate speech, adult content, and national security. Many of these requests target political speech and criticism of government, either overtly (as in Thailand’s lèse majesté law prohibiting criticism of the king) or through pretextual application of national law. For example, Google has received requests to limit access to information:

• From the Turkish government to remove a YouTube video containing a survey of protesters at the Gezi Park demonstrations. The survey asked questions about the protestors’ political aims, their reason for protesting, and what caused them to join the protest. The Turkish government asserted this violated national law against hate speech and protests that disturb the public order.
• From the Government of Pakistan‘s Ministry of Information Technology to remove six YouTube videos that satirized the Pakistan Army and senior politicians.
• From the Thai Ministry of Communication, Information and Technology (MICT) to remove 298 YouTube videos for allegedly insulting the Thai royal family.
• From the Telecommunications Regulatory Authority of the United Arab Emirates to remove a YouTube video. The video contains footage of a member of the royal family torturing Sudanese workers in his farm.

In the de-listing fight, France is not demanding that Google take down the challenged content (which is largely hosted by entities other than Google). But it is asserting the authority to set the parameters for access to information outside of its borders. In doing so, it lends an unwarranted legitimacy to more authoritarian regimes’ efforts to do the same thing.

“Right to Be Forgotten” is not a global norm

Furthermore, the right that France is asserting on behalf of its citizens, for a person to limit others’ access to true, public information about him that has been lawfully published, has not been recognized by a consensus of nations. In the United States, the First Amendment protects the right to publish information that has been acquired lawfully (Smith v. Daily Mail) — even if, for example, a news reporter knows that her source has obtained the information illegally (Bartnicki v. Vopper).  In Colombia, the Constitutional Court rejected a petition for Google to de-list search results, finding that such an order would be excessive and would convert the search engine into a censor, and ordering clarification of the content at its source. Commentators around the world have questioned the scope and application of the concept of a “right to be forgotten” and the wisdom of enforcing it via an intermediary such as a search engine. The CNIL’s push for global enforcement of its de-listing right does not reflect a global standard.

Jurisdiction questions are not new; the globally interconnected internet is inherently challenging to the ability of a nation to control the flow of information beyond its borders. But the answer from democratic countries cannot be to enforce their limitations on access to information against the entire world, especially in circumstances that require a careful, context-dependent balancing of fundamental rights to privacy and free expression. We urge the Conseil d’État to consider these serious consequences as they address the case before them.