The “right to be forgotten” online is in danger of being transformed into a tool of global censorship through a test case at the European court of justice (ECJ) this week, free speech organisations are warning.
An application by the French data regulator for greater powers to remove out of date or embarrassing content from internet domains around the world will enable authoritarian regimes to exert control over publicly available information, according to a British-led alliance of NGOs.
The right to be forgotten was originally established by an ECJ ruling in 2014 after a Spaniard sought to delete an auction notice of his repossessed home dating from 1998 on the website of a mass circulation newspaper in Catalonia.
He had resolved his social security debts, he said, and his past troubles should no longer be automatically linked to him whenever anyone searched for his name on Google. The power to de-list from online searches was limited to national internet domains.
That judgment allowed European citizens to ask search engines to remove links to “inadequate, irrelevant or ... excessive” content. While the content itself remains online, it cannot be found through online searches of the individual’s name.
In the latest ECJ case to be heard in Luxembourg on Tuesday, the French data regulator is seeking to extend that power so that it applies universally. That would permit national regulators to hide articles deemed unacceptable not only from their own cyberspace such as google.fr, but also from global domains including google-com and from those of other countries.
Google is resisting the claim on the grounds that it would set a precedent for authoritarian regimes to limit free speech.
France’s data regulator, the Commission Nationale de l’Informatique et des Libertės (CNIL), has argued that if it upholds a complaint by a French citizen, search engines such as Google should not only be compelled to remove links from google.fr but all Google domains.
Otherwise, it maintains, inaccurate data is still visible to the curious who can can simply fake their IP address to pretend they are searching from a non-EU country. CNIL believes that the right to be forgotten will become worthless if not applied universally.
Human rights organisation Article 19, whose name derives from the clause in the UN’s universal declaration of human rights which guarantees free speech, fears that access to all sorts of media and information could be severely restricted if states such as China, Russia and Saudi Arabia adopt a similar approach.
Thomas Hughes, the executive director of Article 19, said: “This case could see the right to be forgotten threatening global free speech. European data regulators should not be allowed to decide what internet users around the world find when they use a search engine. The [court] must limit the scope of the right to be forgotten in order to protect the right of internet users around the world to access information online.”
The right to privacy and right to freedom of expression must be balanced when deciding whether websites should be de-listed, he said. “If European regulators can tell Google to remove all references to a website, then it will be only a matter of time before countries like China, Russia and Saudi Arabia start to do the same. The [ECJ] should protect freedom of expression, not set a global precedent for censorship.”
Judgment is expected to be reserved until next year. The UK is still subject to ECJ rulings though the legal relationship is likely to change following Brexit.
In June last year, Canada’s supreme court ruled that Canadian courts did have the right to force Google to remove links globally. “The internet has no borders – its natural habitat is global,” the court declared. At the time, Google was hoping to be able to resist such orders where it could prove that complying would force it to violate other countries’ laws.
