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Google files appeal in France opposing an order to apply Right to be Forgotten globally

TechCrunch TechCrunch 19/05/2016 Ingrid Lunden

While Google shows off its latest developments at the I/O event in California, there’s been another development in the ongoing legal fallout from the 2014 Right to be Forgotten ruling in Europe. Today, Google said that it has filed an appeal in France’s Supreme Administrative Court, the Conseil d’Etat, in opposition to a new, expanded order from the French data protection regulator (CNIL): the CNIL wants RTBF requests and delistings to apply to searches globally, not just in domains viewed in a person’s home country.

The announcement of the appeal was made originally in an opinion piece penned by Kent Walker, Google’s global general counsel, and published today in France’s LeMonde newspaper, where he also revealed that Google now reviewed almost 1.5 million webpages and delisted around 40% of them across Europe. Google subsequently published an English version of Walker’s op-ed on its own blog.

Google’s appeal comes on the heels of the search giant getting fined $112,000 in March after the CNIL decided that the current RTBF implementation — which removes links across all Google domains within the individual’s country in the EU — was not strong enough, and that it should be applied globally.

“Only a measure that applies to app processing by the search engine, with no distinction between the extensions used and the geographical location of the Internet user making a search, is legally adequate to meet the requirement for protection as ruled by the Court of Justice of the European Union,” said the CNIL statement. The CJEU is the body that made the original RTBF ruling.

Up to now, the main argument from Google and others against RTBF requests is that they could be used to restrict the free flow of information — something that Google has said it’s against on principle, but more pointedly also could undermine the company’s wider business model.

But Google’s opposition to the CNIL’s expanded requirement takes things a little further: from Walker’s and Google’s point of view, complying with CNIL would be setting a bad precedent for international law and how countries today set and follow their own national laws that may differ from those of other countries.

“As a matter of both law and principle, we disagree with this demand,” he writes. “We comply with the laws of the countries in which we operate. But if French law applies globally, how long will it be until other countries – perhaps less open and democratic – start demanding that their laws regulating information likewise have global reach?  This order could lead to a global race to the bottom, harming access to information that is perfectly lawful to view in one’s own country… We have received demands from governments to remove content globally on various grounds — and we have resisted, even if that has sometimes led to the blocking of our services.”

On one hand, it’s unsurprising to see Google opposing CNIL in this case: as the French regulator has tried to widen the scope of RTBF before, Google has appealed those past stages — and lost. Losing or winning a case in one country has a wider legal precedent for Google, as it will apply across the whole of the EU.

While there is definitely an argument to be made about the sanctity of international law, the question will be whether it’s fair to say that expanding RTBF globally is an accurate example of how this is being violated.

For one thing, given how international and borderless the Internet is, restricting where RTBF is being applied by geography seems like an ineffectual way of addressing a person’s right to privacy.

Similarly, it’s worth remembering that RTBF delisting doesn’t remove pages from the Internet or search engine results altogether. What they do is remove the ability to find those pages by searching on the specific names of individuals that have requested the results to be removed.

The next step in the battle will see the French court reviewing the case again in coming months.

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