Google Triumphant in the ‘Right to be Forgotten Case’

Sep 25
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In a momentous ruling that clarified its 2014 judgement, the European Court of Justice (ECJ) asserted today that the “right to be forgotten” applies only within the geographical boundaries of the 28-nation bloc constituting the European Union. Consequently, Google (NASDAQ:GOOG) is not obligated to impose a global de-listing of search results deemed to be “inaccurate, inadequate, irrelevant, or excessive” by EU citizens who invoke this right.

What Happened?

The ECJ ruled that EU law does not automatically apply outside the legal jurisdiction of the bloc, thereby, rejecting the viewpoint that favored an expansive interpretation of European laws and precedents. The court, however, imposed an obligation upon Google and other search engines to take material steps to “discourage” external access, in geographic terms, to search results de-listed in the EU under the right to erasure. Thomas Hughes of Article 19 – an organization that represented in this case a coalition of free speech proponents – termed the decision a “victory for global freedom of expression”. He went on to add that, “Courts or data regulators in the UK, France or Germany should not be able to determine the search results that internet users in America, India or Argentina get to see.”

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The ECJ also delivered today a ruling in a related case. This judgement states that references and links should not be destroyed by search engines on the sole basis that they lead to embarrassing information about a person’s sexual life or criminal history. The court elaborated that such information may be preserved where “strictly necessary” in order to uphold the right to freedom of information. The court did add a qualifier that these search results should experience a gradual demotion in search listings over a period of time.

Google - ECJ Background

The case arose when CNIL, the French data protection regulator, ordered Google in 2015 to ensure global de-listing of search results flagged under the right to erasure principle enshrined by the ECJ in a 2014 verdict. When the search engine behemoth resisted the implementation of this order, the French regulator imposed a €100,000 fine. Thereafter, Google challenged CNIL’s order in the ECJ asserting that compliance in this situation would lead to websites being populated with obsolete or false information which, in turn, would prevent a large segment of the population from accessing timely and accurate information.

Since 2014, Google has received nearly 850,000 individual requests to de-list links and references to about 3.3 million websites that were flagged under the right to erasure principle. The company has revealed that, under the circumstances, it was forced to adopt the role of a ‘semi-regulator’ as it evaluated each de-listing request. Moreover, the tech titan has imposed a geo-blocking filter since 2016 to prevent EU citizens from viewing de-listed links in their search results. Consequently, a defeat in this case would have forced Google to expand the geo-blocking filter to encompass the entire globe.

Lately, Europe seems to have become the prime arena where privacy advocates and regulators routinely wage battles against the giants of the tech world. In this charged environment, Google has also experienced its share of skirmishes. For example, the company was fined €50 million by the French CNIL earlier this year for the opacity of its privacy policy and incorrect processing of user data for advertisements. This constituted one of the first penalties levied for violation of EU’s expansive data protection rules under the General Data Protection Regulation or GDPR. Moreover, the Irish data privacy regulator has been looking into claims that some of Google’s contractors were able to listen to audio of its digital assistant users. Furthermore, the iconic tech company is also contesting antitrust penalties levied against it by the EU regulators (read our previous coverage here).

Implications

This decision by the ECJ bodes well for Google as it limits the extraterritorial jurisdiction of EU laws and regulations which, in turn, reduces the compliance costs for the company. Moreover, by recognizing the inherent unfairness of the imposition of EU-wide diktats on the rest of the world, the ECJ has upheld the equality principle as it applies to individuals as well as nations. This does not, however, mean that the EU’s stance towards privacy is wrong. On the contrary, Google and other Silicon Valley giants already enjoy so much influence over a given user’s life, that the absence of regulation and privacy concerns will only result in unbridled monetization of every aspect of the user’s life. However, in their zeal, the EU regulators have tended to go overboard lately. As all good things come in moderation, so is the case for regulation.

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