Google’s right to be forgotten appeal heading to Europe’s top court

Europe’s ‘right to be forgotten’ ruling, which allows private citizens in the region to make requests that search engines delist incorrect, irrelevant or out of date information returned by an online search for their full name, is set to return to the region’s top court to settle an ongoing dispute between Google and the French data protection agency, CNIL.

The latter has pushed for Google to make these delistings apply globally, i.e. across all web domains, rather than geo-limiting delistings to the person’s home territory (as Google prefers to) — arguing that for Google not to do this offers a trivial workaround to a rule that’s intended to preserve European’s privacy rights.

Google filed an appeal against the CNIL’s order for global delisting in May last year, following a fine of €100,000 handed to it by the regulator for non-compliance.

The court hearing Google’s appeal has now decided to refer certain legal questions relating to European law to the CJEU for a preliminary ruling before coming to a judgement on the case itself.

In a statement the French court said: “[T]he Council of State considers that the scope of this right to dereferencing poses several serious difficulties for the interpretation of European Union law. He therefore stayed the proceedings on the application of Google Inc. and referred several questions to the Court of Justice of the European Union for a preliminary ruling.”

The court adds that the extraterritoriality of the CNIL’s requirement for global delisting “poses a serious difficulty in interpreting the Law of the European Union”.

A spokeswoman for the CNIL declined to comment on today’s development.

She suggested a CJEU judgment could take around a year to be issued based on the court’s current processes.

On the issue of extraterritoriality — i.e. whether Europe’s digital privacy laws should apply outside the region — Google has argued there should be a “balance” between delisting locally vs globally.

Commenting on the court’s referral to the CJEU in a statement, Google’s global privacy counsel, Peter Fleischer, said: “Since 2014, we’ve worked hard to implement the ‘right to be forgotten’ ruling thoughtfully and comprehensively in Europe. For the last 18 months, we’ve been defending the idea that each country should be able to balance freedom of expression and privacy in the way that it chooses, not in the way that another country chooses.  We’re doing this because we want to ensure that people have access to content that is legal in their country. We look forward to making our case at the European Court of Justice.”

The CJEU’s original ‘right to be forgotten’ ruling was handed down in May 2014 — at a time when the phrase ‘fake news’ had yet to become standard Internet currency. So while the court decision kicked up a lot of controversy at the time, and the Google of 2014 tried very hard indeed to pass off the notion that its algorithmic ranking of information in search results was equivalent to a library index card system — i.e. an indelible catalogue of truth — the Google of 2017 would likely have a lot more trouble selling such a pitch, given it’s facing far tougher questions about a fresh crop of controversial issues, such as algorithmic bias and how its own search results promote, ehem, fake news…

Whatever you believe regarding the jurisdiction of one region’s digital laws in another region’s territory, happily for society, which is saddled with living with the full force and impact of these dominant tech platforms, the general debate about commercial hierarchies of online information appears to have moved on — and moved rather closer to the, er, actual truth. Let’s call that progress.