Worldwide: Privacy & Information Security Law Blog: Advocate General Finds Search Engine Operators May Limit The Scope Of Right To Be Forgotten To The EU

On January 10, 2018, Advocate General Maciej Szpunar ("Advocate General") of the Court of Justice of the European Union ("CJEU") issued an Opinion in the case of Google v. CNIL, which is currently pending before the CJEU. In the Opinion, the Advocate General provided his views concerning the territorial scope of the right to be forgotten under the relevant EU Data Protection Directive in the case at hand.

Background

The CJEU previously held in 2014's Costeja that individuals have a right to request, under certain conditions, that their personal data no longer be displayed by search engines in response to searches of the individual's name. This is the "right to de-listing" or "right to de-referencing", more commonly known as the "right to be forgotten."

In May 2015, the French data protection authority (the "CNIL") formally notified Google that in responding to such a request, Google must delist the results on all of its search engine's domain name extensions—meaning, worldwide. Google refused to comply, limiting what it removed to relevant results generated from searches entered on domain names corresponding to EU Member States' versions of Google's search engine. Google further proposed a "geo-blocking" technique (after the time limit prescribed in the CNIL's formal notice) that would prevent an Internet user searching the delisting-requester's name from accessing the link results at issue from an IP address located in the user's EU Member State residence, regardless of the version of the search engine used. The CNIL regarded this an inadequate proposal, and found that Google had failed to comply with the formal notice within the prescribed time limit. As a result, the CNIL imposed a fine of €100,000 on Google. Google appealed that decision before France's Council of State (France's highest administrative court). The Council of State decided to refer to the CJEU several questions relating to the territorial scope of the right to be forgotten.

The Opinion

The Advocate General first observed that the provisions of the EU Data Protection Directive do not expressly address the territorial scope issue. In his view, a distinction should be made based on the location of the search request, such that if a search is input outside of the EU, the results should not be impacted by the de-listing of the search results in the EU.

The Advocate General explained that the EU Treaties apply to EU Member States and that EU law should not apply beyond the territory of the EU Member States. The Advocate General recognized that EU law may have extraterritorial effect but such effect only applies in exceptional cases, such as in competition law or trademark law cases affecting the EU internal market.

Further, the Advocate General stressed that the right to be forgotten must be balanced against other fundamental rights such as the legitimate public interest in accessing the information sought, and that the audience concerned is not worldwide but instead European. In his view, the CNIL's approach entailed a risk that individuals in non-EU countries would be prevented from accessing information and, in turn, that non-EU countries could prevent individuals in the EU from accessing information. Accordingly, "a race to be bottom" could occur to the detriment of the freedom of expression at both the European and worldwide level.

Based on this reasoning, the Advocate General concluded that search engine operators are not required to carry out de-listing of specific links on all the domain names of their search engines. Instead, search engine operators should be required to remove the links in question from results generated following a search performed within the EU. In this respect, the Advocate General underscored, search engine operators should take every measure available to them to ensure full and effective de-listing within the EU when such a request is made by a device with an EU IP address. This is true regardless of the domain name used by the Internet user who performed the search.

Next Steps

The CJEU will now begin its deliberation in the Google v. CNIL case and the final judgment is expected in the coming months. The Advocate General's Opinion is not binding on the CJEU, but is highly influential. After the CJEU has issued a final judgment, France's Council of State will decide the case in accordance with the CJEU's ruling.

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