The “right to be forgotten” remains fresh in the minds of free press advocates as the European Union’s top court considers whether an order from the French data privacy authority requiring Google to delete certain links from search results should be applied worldwide.
On Nov. 30, the Reporters Committee filed a written statement on behalf of a coalition of 24 news media organizations urging the Court of Justice of the European Union (CJEU) to hold that a search engine is not required to delete search result links globally when a request for “delisting” has been granted by a European data protection authority.
The right to be forgotten, or right to delisting as it is also known, was recognized by the CJEU in 2014 and allows EU citizens to request that Google and other search engines remove links to certain information that would appear in the results of a search for the individual’s name. At issue in the case currently before the CJEU is whether a search engine must delete links worldwide when a delisting request is granted, as opposed to only within the European Union.
The French data privacy authority—the Commission nationale de l’informatique et des libertés (CNIL)—has demanded that the right to be forgotten be applied globally, even if it conflicts with rights in foreign countries. Google appealed that decision to the French high administrative court, which asked the CJEU to weigh in. Oral argument before the CJEU is expected to take place in 2018.
As we continue to fight for press freedoms in the United States, this case is an important reminder that we must also be vigilant that international decisions do not undermine freedom of the press. Search engines are one of the primary means the public uses to access news and news organizations. If the CJEU requires Google and other search engines to apply the “right to be forgotten” around the world, even in countries like the United States that do not recognize such a right, the public in non-EU countries may lose access to newsworthy information.
In addition, a global delisting requirement from the EU may embolden other countries, with much more restrictive views on freedom of speech, to attempt to apply their laws extraterritorially, requiring search engines to remove links that they find objectionable around the world. As the Reporters Committee’s written statement points out, “If the EU would claim authority to restrict the search results for Google searches conducted in China, the Chinese government might well claim authority to restrict the search results for Google searches conducted in the EU.” Such a result would impose tremendous costs on freedom of expression.
The Reporters Committee’s written statement before the CJEU is available in the as-filed French version or an English translation. It was drafted by a team of pro bono lawyers from WilmerHale — David W. Bowker, Patrick J. Carome, Ari Holtzblatt, Mark Hanin, Sophie Prinz, Frédéric Louis, Hans-Georg Kamann, Martin Braun, and Christian Schwedler.
The Reporters Committee was joined in the brief by the American Society of News Editors, The Associated Press, Association of Alternative Newsmedia, Chicago Tribune Company LLC, Dow Jones & Company, Inc., The E.W. Scripps Company, First Look Media Works, Inc., Floyd Abrams Institute for Freedom of Expression, Gannett Co., Inc., Hearst Corporation, International Documentary Assn., Los Angeles Times Communications LLC, Media Law Resource Center, Media Legal Defence Initiative, MPA – The Association of Magazine Media, National Press Photographers Association, National Public Radio, Inc., The New York Times Company, News Media Alliance, Online News Association, Thomson Reuters Markets LLC, The Seattle Times Company, Tully Center for Free Speech, and The Washington Post.
Many of the parties who joined the coalition before the CJEU previously intervened before the French high court and submitted a brief urging the court to strike down the CNIL’s order (read the brief in the as-filed French version or in an English translation) and previously sent a letter to the CNIL President Isabelle Falque-Pierrotin objecting to the proposal for global delisting (read that letter in French or English).