Google just got a big boost in its fight to avoid having to censor search results around the world because of what Europeans don’t want people to find.
Forcing a search engine to apply the EU’s so-called “right to be forgotten” on a global basis could create a situation where other countries prevent people in the EU from accessing information, the top legal advisor to the EU’s highest court warned Thursday.
So, Advocate-General Maciej Szpunar told the Court of Justice of the European Union, Google should prevail in its long-running battle against the French privacy regulator, CNIL, which insists that global delisting is the only way to ensure people in the EU can’t find certain information.
The argument stems back to the court’s 2014 ruling in the case of a Spanish man who wanted to stop people finding out about his long-ago bankruptcy every time they googled him.
The judgement established that the “right to be forgotten” — part of EU data protection law — applied to search engines, and that the operators of those search engines have to remove links to information if it is “inaccurate, inadequate, irrelevant or excessive,” and if the subjects of the information want the links taken down.
The ruling led to millions of requests for the removal of links from Google, which has taken down more than 44% of those links. Search engines don’t have to remove the links if there’s a public-interest reason for keeping them up.
A few years ago, CNIL told Google that it had to remove the links not only from the European versions of its search engine, but all the versions around the world. The regulator argued that people in the EU could still find a link that was taken down on google.fr — that’s the French Google — if it was still listed on google.com.
Google said it would remove the links for google.com visitors that it could tell were located in the EU, but CNIL said this wasn’t good enough, because a European could theoretically use a VPN or some other location-hiding service to taste the forbidden link-fruit.
Google’s argument has always been that, if the EU courts forced it to censor things around the world, even if the aim is to protect privacy, other countries could do the same on less noble grounds.
In his opinion, Szpunar said Google’s “geo-blocking” offer was sufficient, and indeed necessary to enforce people’s rights. Going further would be risky, he warned, because the “right to be forgotten” always has to be balanced against other rights, including “legitimate public interest in accessing the information sought.”
“…If worldwide de-referencing were permitted, the EU authorities would not be able to define and determine a right to receive information, let alone balance it against the other fundamental rights to data protection and to privacy,” the court said in a statement about the opinion. “This is all the more so since such a public interest in accessing information will necessarily vary from one third State to another depending on its geographic location.”
“There would be a risk, if worldwide de-referencing were possible, that persons in third States would be prevented from accessing information and, in turn, that third States would prevent persons in the EU Member States from accessing information.”
Szpunar advised the court to rule in Google’s favor in this case, though he said he “does not rule out the possibility that, in certain situations, a search engine operator may be required to take de-referencing actions at the worldwide level.”
The opinions of the court’s advocates-general do not always align with the court’s ultimate judgments, though they usually do.
“We hope that the CJEU will follow Szpunar’s opinion when it issues its judgment in this case later this year,” said Thomas Hughes, the executive director of anti-censorship organization Article 19. “The Court must limit the scope of the ‘right to be forgotten’ in order to protect global freedom of expression and prevent Europe from setting a precedent for censorship that could be exploited by other countries.”
“Public access to information, and the right to privacy, are important to people all around the world, as demonstrated by the number of global human rights, media and other organisations that have made their views known in this case,” said Google’s senior privacy counsel, Peter Fleischer. “We’ve worked hard to ensure that the right to be forgotten is effective for Europeans, including using geolocation to ensure 99% effectiveness.”