In its landmark decision of the 24th of September (C-507/17), the EU Court of Justice in Luxembourg has sided with Google over a claim by the French supervisory authority regarding the application of the so-called ‘right to be forgotten’. This right refers to the ability for individuals in Europe to demand that search engines, such as Google, remove search results linked to such an individual’s name, also known as de-referencing.
The case was brought before the Court by Google via the French ‘Conseil d’Etat’, reacting to a €100.000 EUR fine imposed by the French “Commission nationale de l’informatique et des libertés” (CNIL). According to the CNIL, Google’s practice of confining itself to only de-reference on European versions of its search engine following a request thereto was unlawful (thus, only blocking the results in the European-specific versions such as google.fr and google.de, but not in the non-European versions like google.br).
Siding with the Advocate General Szpunar’s opinion, the Court held that EU law does not require search engines to carry out a de-referencing on non-European versions of its search engine as claimed by CNIL.
Indeed, if CNIL’s position would be followed by the CJEU and worldwide de-referencing was required by default under EU law, European supervisory authorities would be able to determine the search results that internet users see around the world, setting a dangerous precedent for censorship that could be exploited by other countries.
Notwithstanding the above, the Court underlined that this does not imply that search engine operators should not take measures to protect the fundamental rights of persons, if necessary. These measures should effectively prevent or, at the very least, seriously discourage an internet user conducting a search from within the EU from obtaining access to these links. However, the Court leaves it to the national authorities to assess the measures to be taken on a case-by-case basis. The Court even recognised that, in particular cases, those measures may still imply carrying-out a de-referencing concerning all versions of that search engine on a worldwide scale.
On the same day, the Court also issued another ruling on the ‘right to be forgotten’ (C-136/17). In that case, the Court found that in relation to search results on criminal proceedings, a search engine operator must, in any event and at the latest on the occasion of a de-referencing request, adjust the list of results in such a way that “the overall picture it gives the internet user reflects the current legal position of an individual.”
What does this mean in practice for the ‘right to be forgotten’?
- Search engine operators are generally not obliged to remove search results linked to an individual (or de-reference) on non-EU versions of the concerned search engine under EU law. As a result, the operator is not required to remove such references in its Brazilian version of Google (i.e. Google.br);
- De-referencing under EU law should in principle occur on all EU versions of a search engine, but exceptions may apply;
- If necessary, search engine operators should take measures to prevent or discourage EU internet users from accessing the relevant references to the individual (notwithstanding the version of the search engine used);
- These measures may include geo-blocking solutions and even de-referencing on non-EU versions of its search engine;