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Summary

The “right to be forgotten” has been a controversial issue since the European Court of Justice (ECJ) ruled that search engines must assess (and, where relevant, satisfy) requests to delist content from their search results when such content is inaccurate or no longer relevant. Now that the French data protection authority, the CNIL, has required Google to delist results related to French persons across all versions of its search engines worldwide, things are even more controversial than before.

Google’s concerns of a “race to the bottom” could be well founded

It is no surprise that Google has decided to challenge the order issued by the French data protection authority, the CNIL, in June 2015 demanding that it delist information related to French persons across all versions of its search engine worldwide. The CNIL stated that Google will face penalties of up to €150,000 if it fails to comply. The order does not only affect the interests of Google and its users; it could also create problems between conflicting legislations.

As a search engine, Google relies on complete and extensive results being returned when a user types in a search query. Google has worked with regulators to comply with the right to be forgotten since last year’s ECJ ruling, but has also ensured that users could turn to other versions of its website to obtain a full set of results.

Google has voiced its concerns about creating a “race to the bottom,” whereby, in the long run, the Internet would be only as free as the least free country in the world. It has argued that no country should have the authority to control what content someone in a second country can access. However, this is only part of the problem. As things stand, implementing the right to be forgotten leaves Google to decide, almost unchallenged in first instance, whether or not a request should be satisfied. It becomes, in many respects, a policeman of the Internet – something of which regulators should be very wary.

In addition, it is difficult to argue that French rules can apply outside France. By asking Google to delist results for all versions of its search engine, the French regulator is limiting access to content by people from countries not subject to the French jurisdiction. This could potentially create conflicts between legislations if Google is forced by rules in another country to keep all the results in its lists.

Appendix

Further reading

Data Protection Tracker: 1Q15, TE0007-000867 (January 2015)

“Despite Google’s efforts, implementing the right to be forgotten remains a challenge,” TE0007-000846 (November 2014)

Author

Luca Schiavoni, Senior Analyst, Regulation

luca.schiavoni@ovum.com

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