European Court hands down landmark right to be forgotten judgment

The Grand Chamber of the Court of Justice of the European Union (CJEU) has today determined the dispute over Google’s responsibility to remove information from the internet in relation to the controversial “right to be forgotten”. In an important decision for freedom of speech, the CJEU has found that de-referencing requests under the EU Directive can only be applied within the European Union.

The matter had been referred to the Court by France’s Conseil d’Etat. Google had appealed the decision of France’s data protection authority la Commission nationale informatique et libertés (CNIL) which required Google to comply with right to be forgotten de-referencing orders by removing the information from search engines globally.

The question for Court was: where a regulator in one EU country requires information to be removed from the internet, should that be given effect in that one country, across the EU or globally?

CNIL’s approach had serious implications for freedom of expression, particularly in the developing world. For this reason, 13 NGOs which specialise in the defence of human rights and online freedom of expression in Africa, Asia, Latin America and Europe intervened before both the Conseil d’Etat and again before the CJEU. They are represented by barristers Caoilfhionn Gallagher QC, Jude Bunting and Jennifer Robinson of Doughty Street Chambers, along with avocat Thomas Haas.

The 13 NGOs argued that global de-listing will have grave ramifications, far beyond the impact on the rights of Google. It will undermine freedom of expression and human rights activism around the world. The 13 NGOs provide a unique perspective as they are based in countries as diverse as Brazil, Colombia, India, Mexico, Nigeria, Pakistan, Senegal, South Africa and Uganda.

The Court agreed, adopting the position put forward by the interveners.

The Court recognised the interveners’ argument about the importance of free speech and that the right to be forgotten is not recognised around the world (at [59]-[60]):

…it should be emphasised that numerous third States do not recognise the right to de-referencing or have a different approach to that right. Moreover, the right to the protection of personal data is not an absolute right, but must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality… Furthermore, the balance between the right to privacy and the protection of personal data, on the one hand, and the freedom of information of internet users, on the other, is likely to vary significantly around the world.

The Court also adopted the interveners’ concern that, to date, there has not been proper consideration of the balancing test between the right to privacy of an individual in an EU Member State (from which the right to be forgotten flows) and freedom of speech in a global context (at [61]):

While the EU legislature has, in Article 17(3)(a) of Regulation 2016/679, struck a balance between that right and that freedom so far as the Union is concerned …, it must be found that, by contrast, it has not, to date, struck such a balance as regards the scope of a de-referencing outside the Union.

Accordingly, the Court found that there was no requirement to de-reference information outside of the EU.

Caoilfhionn Gallagher QC said:

All too often debates about internet regulation focus on Europe and North America only, ignoring the global ramifications. Our clients are a global and diverse coalition which spans the globe - from the Internet Freedom Foundation of India, to Jonction in Senegal, and the Institute of Technology and Society of Rio.

They rely on freedom of expression and on the free exchange of ideas and information online so as to carry out their important work protecting human rights around the world. Many are based in countries with repressive press laws, where free access to the Internet is critical in protecting human rights and enabling NGOs to campaign for change.

The decision of the European Court today sets an important precedent for freedom of speech. The right to be forgotten is not universally recognised around the world. No state should be permitted to remove information from the internet with global effect. To do otherwise would trigger a ‘race to the bottom’: where the information available online to internet users everywhere would be determined by the state with the most repressive and draconian laws.

The case received widespread coverage in the media, including The Guardian, BBC, The Telegraph and Bloomberg

The NGOs who intervened in the CJEU case were:

Internet Freedom Foundation, India
Software Freedom Law Center, India
Collaboration on International ICT Policy for East and Southern Africa (“CIPESA”)
Digital Rights Foundation, Pakistan
Unwanted Witness, Uganda
Paradigm Initiative, Nigeria
Association for Progressive Communications, South Africa (with members from 77 countries) I-Freedom Uganda Network, Uganda
Jonction, Senegal
Media Rights Agenda, Nigeria
Sierra Sustainable Technology
The Institutio Beta for Internet and Democracy, Brazil
The League of cyberactivists for democracy, Africtivistes, Senegal
The Karisma Foundation, Colombia
Global Voices, United States
The Institute of Technology and Society of Rio, Brazil
Red en Defensa de los Derechos Digitales, Mexico
The Center for Information Technology and Development (“CITAD”), Nigeria