Advisory Opinion on Right to Be Forgotten Should Be Reminder to France to Respect the Global Internet Community

January 16, 2019

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An advisor to the European Court of Justice (ECJ), tasked with providing an impartial legal opinion when cases raise a new point of law, wrote this week that search engines should not be forced to extend the EU’s “right to be forgotten” beyond Europe’s borders. While this opinion is not binding—the ECJ will issue a ruling in a case between Google and the French government later this year—the conclusion reaffirms the problems that arise when nations attempt to unilaterally impose their domestic policies on the global Internet community.

This conflict arises from a 2014 ECJ decision that ruled Europeans have the right to request that search engines remove links from queries associated with their names if those results are irrelevant or outdated—a right that was codified in the General Data Protection Regulations (GDPR) which became law last May. As a result, Google has since delisted search results from these requests for all European users based on geolocation signals, such as their IP addresses, as well as from European versions of Google Search, such as google.fr and google.de. This allows the company to remove offending results for European users, without affecting the rest of its users worldwide. However, the French data authority, unhappy with only censoring European users, fined Google €100,000 for not delisting French right-to-be-forgotten requests from every one of Google’s websites for all users worldwide.

Google appealed this decision to the ECJ, and this week, Maciej Szpunar, the advocate general for this case, issued an opinion that argues that the right to be forgotten should be balanced with the legitimate public interest in accessing information. Because of this need for balance, Szpunar argues, the ECJ should not permit France to force Google to delete search results worldwide.

The problem with making domestic laws the de facto laws for the global Internet is that all countries do not share the same values and laws. There is no global consensus on the right to be forgotten. In fact, critics around the world have derided the policy because of its negative impact on free speech. Others highlight that it primarily helps those trying to hide their transgressions. For example, in 2017, the Belgian Data Protection Authority ordered Google to remove links to web pages that correctly identified an individual convicted of a violent assault. Similarly, a court in Finland ruled in 2018 that this precedent gives a convicted murderer the right to have publicly-available information about his crime removed from Google search listings. Indeed, many nations, including the United States, put a higher premium on freedom of expression and transparency than the right to hide.

It is unclear if the ECJ will affirm the advocate general’s position when it issues a ruling in the case later this year. But repudiating the French government’s position that it has the authority to unilaterally apply its policies to other countries would be a welcome change. After all, France is beginning to make these types of unilateral actions more routine. Most recently, for example, France decided to go against international norms and introduce a digital tax on revenue from large tech firms. This is not only bad policy—a digital tax unfairly targets one sector of the economy and some, but not all companies in it—it also it undermines multilateral efforts to reform tax rules globally.

Sometimes countries will disagree on Internet policy, and there is nothing wrong with nations having different Internet laws and regulations affecting Internet activity within their borders.  The problem arises when nations attempt to impose their policy preferences on other nations and in so doing fail to respect the global nature of the Internet. If countries do not show proper restraint, they can easily sabotage the global Internet by imposing unreasonable obligations on companies and setting up scenarios where companies are forced into a no-win situation of having to comply with conflicting laws. Hopefully this most recent advisory opinion will be a wakeup call to the French government that it should show more respect for the rest of the global Internet community. And if they do not back down, other nations should stand firm in resisting efforts to impose French rules on the rest of the world.