Nani Jansen Reventlow is a human rights lawyer with Doughty Street Chambers in London and a Fellow at the Berkman Klein Center for Internet & Society at Harvard University. You can follow her @InterwebzNani.
A court case in France might drastically change what information individuals can access online. The case is pending before the French Council of State—France’s highest court—and concerns a “right to be forgotten” dispute between Google and the French data protection authority, CNIL. In 2014, CNIL ordered Google to remove twenty-one links from its search results (a process known as delisting) based on a right to be forgotten claim of a French citizen. Under EU law, Europeans can petition a search engine to remove links about them if they believe the links refer to information that is “inaccurate, inadequate, irrelevant, or excessive.”
Google implemented the delisting request by making the content inaccessible from all its European Union and European Free Trade Association domains, not only by removing the links from search results on local search sites (e.g., google.fr, google.de, google.ch), but also by blocking the links from search results to European users accessing non-European search sites, such as google.com. However, according to CNIL, this is not enough. CNIL argues the links have to be made unavailable not only in France and Europe, but worldwide.
At the center of the dispute lies the question of jurisdiction and the basic premise that every country should regulate matters within its own borders, unless there are exceptional circumstances. Such exceptional circumstances in the offline world are matters that qualify as so-called peremptory norms of international law, issues on which there is a consensus amongst states, such as the obligation to prosecute piracy and the prohibition of slavery and torture. In the online world, there is consensus on the illegality of child pornography, and one might argue that there is a substantial degree of consensus in the field of copyright.
There clearly is no such consensus, however, on the meaning of the “right to be forgotten.” Since the Court of Justice of the European Union handed down the Costeja decision establishing the concept in 2014, the scope and meaning of the right to be forgotten has been interpreted in vastly different manners by national courts. A right to be forgotten claim therefore does not provide sufficient legal basis for the data protection authority of one country to determine the accessibility of online content in another.
In addition, there is a justified fear that condoning CNIL’s conduct will set a dangerous precedent by opening the door for national authorities worldwide to impose global restrictions on freedom of expression based on standards that are solely grounded in domestic law. There are examples abound of governments trying to police online content in an overly restrictive manner. Giving CNIL the green light will provide online censors convenient precedent to hide behind. In addition, it will create incentives for intermediaries to err on the side of caution when dealing with future delisting requests and make them inclined to accept requests that are overly broad in geographical scope, especially if they don't have the capacity or resources to challenge them.
The sheer number of opinion pieces, critiques, and amicus briefs filed in the proceedings in France are a testament to this court case’s potential implications. This week, a coalition of eighteen organizations from the global South filed their submissions, arguing that CNIL’s order is an overly broad restriction of the right to freedom of expression that affects the rights of those seeking information beyond France's borders. This last point is poignantly illustrated by the presence of a number of interveners from francophone countries amongst the coalition.
While CNIL’s efforts in protecting the interests of a French citizen may be well-intentioned, the Council of State should be mindful of the implications of its decision in this case, as they extend far beyond the individual who wants their information removed from the web. The internet's brilliance as a shared global resource lies in making content posted by a person in one place available—through a search engine of their choice—to everyone, everywhere, with an internet connection. If the French court is not careful, we may all soon wake up to find the internet an eerily empty place.