Google Refuses to Expand the Right to be Forgotten

Privacy

CNIL Order (France’s National Commission of Information and Liberties, June, 12 2015)

Google v. AEPD, Case C‑131/12, (Court of Justice of the European Union, May, 13 2014) (opinion hosted by CURIA)

Google has taken an affirmative step against expanding the right to be forgotten in a move that has been called a step against online censorship.

In a clash that pits users’ privacy rights against the West’s disdain for censorship, Google has decided that limiting internet censorship is more important, refusing to comply with a French regulator’s order to expand the right to be forgotten.  On May 13, 2014, Europe’s top court ruled that Google had to honor the EU’s right to be forgotten. The right to be forgotten—also known as the right to delist—allows users to remove “irrelevant” or “inadequate” search results associated with their identities. While Google has been removing qualifying links from the European versions of its search engine (such as Google.fr), it refuses to remove those links from its international domains (such as Google.com, ranked by Alexa.com as the world’s most popular website).

In June 2015, the Commission Nationale de L'informatique et des Libertés (CNIL)—the French administrative body that regulates data privacy—ordered Google to begin removing qualifying links from all of Google’s domains worldwide. Google refused in an official blog post by its Global Privacy Counsel, Peter Fleischer. Fleischer called the CNIL order “a troubling development that risks serious chilling effects on the web,” and argues that, while the right to be forgotten is the law in Europe, it is not the law worldwide. Thus Google refuses to remove qualifying links from non-European domains, which it argues are not governed by Europe’s delisting laws.

The New York Times provides an overview of the clash between Google and French privacy regulators. Fortune offers additional commentary, calling Google’s move a “bold challenge to France” and a “dramatic gesture to oppose censorship of its search results.”

Google and the EU’s privacy regulators are fighting over the rules governing an individual’s internet presence.  The right to be forgotten allows an individual to have URLs removed from search results if those webpages contain misleading or unflattering information. The EU’s high court has declared that Google must remove webpages from its search results when a user submits a qualifying link.  Google—which holds a 90% market share amongst search engines in Europe—has only partially complied. Google thinks it should not have to remove links from international domains, which it argues are not governed by European law.

Since Europe’s right to be forgotten decision was first announced, Google has received hundreds of thousands of delisting requests, with the majority of the requests coming from France. Google’s policy is to respond to users’ requests and remove links only from the European versions of its search engine. So while a French user may be able to remove some URLs from a Google.fr search, those pages are not removed from non-European domains like Google.com.

CNIL—France’s privacy watchdog—contends that Google’s practice is inadequate: it argues that, in order for the right to be effective, desilting must be carried out on all of Google’s domain names.  Otherwise, a user simply becomes harder to find, and not truly “forgotten.”

In June 2015, CNIL ordered Google to expand its delisting practices to all of its domains. CNIL had given Google until the end of July to comply with its order.  Google refused, and has requested that CNIL withdraw its order. CNIL has acknowledged Google’s response, and said it would respond to Google’s comments within two months. Google is expected to fight any unfavorable rulings in local courts, which can result in a drawn out process lasting several years. If CNIL ultimately prevails, Google would face sanctions of up to 300,000 euro.

Google has decided that freedom of expression and the policy against censorship outweigh a user’s right to control her cyber-footprint.  For its part, Google plays more than just the censorship card: it also asserts that expanding the right to be forgotten would have little practical effect.  Over 97% of search requests in France take place on Google.fr—as opposed to Google.com or other international domains. Thus, according to Google, the marginal increases in user privacy are outweighed by the drastically higher social costs associated with censorship.

Google also makes a slippery slope argument: a broader delisting right in Europe could lead authoritarian governments elsewhere to restrict cyberspace by applying harsh censorship rules beyond its borders.  Google’s appeal to such a scenario is supported by recent moves in nations outside the European Union.  In Google’s response to CNIL’s order, the company cites laws in Thailand and Turkey that criminalize non-conforming speech. The BBC reports that China has also approved tighter controls of internet access.  Meanwhile, the Wall Street Journal’s Digits column analyzes a proposed Russian right to be forgotten law, which would put an even greater onus on search companies.

Google calls this a slippery slope—“a race to the bottom” in which authoritarian regimes, spurred by a broader delisting right in Europe, implement increasingly stricter forms of censorship to remove dissent and all types of information available online. According to Google, at the end of this slippery slope, “the Internet would only be as free as the world’s least free place.”

The American public seems to agree with Google. After a 2015 Intelligence2 debate, a survey of hundreds of Americans revealed that 56% were against the right to be forgotten, while only 35% were in favor of a delisting right.

Google is fighting a battle in favor of a free and open cyberspace, while the EU is protecting the personality interests that tend to be particularly important in continental countries influenced by the civil law tradition. It remains to be seen whether those personality interests will prevail over the powerful disdain for censorship that exists in the Western World.  While it will be interesting to see this issue play out, it may take years before we see a resolution.