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Right to be forgotten: one legal battle is ending

...but many are yet to come

15 January 2019

A step towards the resolution of the dispute between Google and the French data protection authority (CNIL) over the right to be forgotten was taken on 10 January 2019, with the publication of the opinion of the Advocate General of the European Court of Justice in favour of Google.

As a reminder, the right to be forgotten, created by the European Court Justice's landmark decision "Google Spain" in 2014, allows individuals in Europe to obtain from search engines that they delist search results related to their names that are "inadequate, irrelevant or no longer relevant, or excessive". For example, the right to be forgotten can be exercised by a young graduate to obtain that photos of him taken during a drinking party and posted on Facebook no longer appear when an employer types his name on a search engine. While this right gained popularity among the public - more than 700,000 requests for delisting have been registered by Google since 2014 - its scope is bitterly disputed between Google and the CNIL. The main issue, in a few words, is whether the right to be forgotten requires Google to delist the results accessible only to people using the search engine in the European Union (i.e. strictly European scope), or to delist results accessible by all people in the world, regardless of the countries from which they access the search engine (i.e. global scope).

The Advocate General opined in favour of a strictly European scope for the right to be forgotten. He considered that this was the only interpretation that preserved another right just as essential as the right to be forgotten, namely the public's right to information. According to him, a right to be forgotten with a global scope is simply not compatible with the public's right to information with which it must be balanced.

Moreover, the Advocate General argued that applying a global scope to the right to be forgotten would in practice allow the European Union to prevent persons from other regions of the world to have access to information on the internet. There would be nothing to stop other countries from doing the same in response - which would lead to a reduction of online content. In the long run, search engines would only list the content authorized by the most authoritarian State in the world…

While the dispute between Google and the CNIL is coming to an end, the issues surrounding the right to be forgotten are far from being all resolved. Firstly, the Advocate General did not exclude that the right to be forgotten may have a global scope in some situations, but did not specify what these are. If the Court of Justice was to adopt the same mysterious statement in its upcoming decision, it would result in a blurring of the scope of the right to be forgotten, and numerous judicial decisions would be needed to clarify it again. Secondly, the issue of the interplay between the right to be forgotten, regarding which the Court of Justice will deliver its decision in a few weeks, and the right to erasure under the GDPR, which allows any person to obtain not the mere delisting but the erasure of personal information, remains open. Will the Court of Justice's interpretation of the right to be forgotten, based on a text which no longer exists since the entry into force of the GDPR in May 2018, apply to the right to erasure which can also be exercised with search engines? How concretely will the right to erasure of the GDPR apply against search engines?

In Germany, a Court has already ruled that the "right to be forgotten" born of the 2014 "Google Spain" decision and the right to erasure created by the GDPR are not to be mixed up – they are two different rights, with different scopes and subject to different rules. An opportunity was indeed given to the Higher Regional Court of Frankfurt to rule on the applicability of the "Google Spain" decision to a case in which the plaintiff invoked his GDPR right to erasure against a search engine. The Court analyzed the legislative history of the right to erasure in detail, and found strong arguments for not applying the rules set by the "Google Spain" decision to this right (appeal to the German Federal Court of Justice is pending). It remains to be seen whether the European Court of Justice will be given the same opportunity in the coming months to rule on the application of the right to erasure of the GDPR against search engines - and what it will decide.

Whether the European Court of Justice follows the Advocate General or not, there is no doubt that the right to be forgotten will continue to be hotly debated. Further legal disputes are to be expected!