The Court of Justice rewrites the right to be forgotten

With a sentence published at this time, the European Court of Justice has more accurately adjusted the scope of action of the so-called “right to oblivion". In reality, this is a substantial correction, since – speaking about a dispute between Google and the French authority for the protection of privacy (CNIL), the CURIA has specified as of now also the right to oblivion will have of the limits.

The Court, therefore, partly agrees with Google in the dispute itself, but partly extends the current national scope of the institution of oblivion by making it continental. In other words:

at present, for the manager of a search engine that accepts a request for de-indexing presented by the interested party, it does not exist, possibly following an injunction by a supervisory authority or a judicial authority of a Member State, an obligation, arising from EU law, to carry out such de-indexation on all versions of its engine.

Right to oblivion now works like this

Therefore, if a French citizen asks Google for the removal of some sites from the index, Google will no longer have to extend this removal to all versions of Google worldwide. The logic is that of a necessary balance of rights, with a view to a proportionality of intervention:

The Court adds that the right to the protection of personal data is not an absolute prerogative, but must be considered in the light of its social function and must be reconciled with other fundamental rights, in accordance with the principle of proportionality. Furthermore, the balance between the right to respect for private life and the protection of personal data, on the one hand, and the freedom of information of Internet users, on the other hand, can vary greatly around the world. However, it does not appear from the legislation that the EU legislature carried out such a balancing with regard to the scope of a de-indexation outside the Union, nor that it chose to give the rights of individuals a scope that goes beyond the territory of the Member states. Nor does it appear that it intended to impose on an operator, such as Google, an obligation to de-index also concerning the national versions of its search engine which do not correspond to the Member States. Moreover, EU law does not provide for cooperation instruments and mechanisms regarding the scope of a de-indexation outside the Union.

At the same time, the Court requires Google toextension of the right to oblivion to the entire European Union. But this does not mean only that the results must be removed from the various Google.it, Google.fr, Google.de, etc.: the engine must implement all the expedients useful to prevent a European citizen from easily circumventing the limits of geolocation passing through an extra-Community version of the engine.

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In concrete terms, reconstructing the previous example: if a French citizen asks Google for the removal of some pages from the index, the removal will take place on all versions of the engine that refer to European domain extensions (Google.it, Google.fr , Google.de, etc.); at the same time, no European citizen will be able to reasonably find these pages indexed if they attempt the same search through extra-European versions of the engine (eg Google.com.br, Google.ca, etc.). However Google will not have the duty to delete these pages on non-European engines from the index because outside the EU the right to oblivion would lose its function and it will be necessary to refer to other jurisprudence to obtain the cancellation of the pages.

Finally:

the law of the Union, while not imposing, at present, that the deindicization focuses on all versions of the search engine, nor does it prohibit it. Therefore, the authorities of the Member States remain competent to carry out, in accordance with national standards for the protection of fundamental rights, a balance between, on the one hand, the right of the person concerned to the protection of his private life and the protection of his personal data; on the other hand, the right to freedom of information and, at the end of such balancing, to request, if necessary, that the manager of this search engine carry out a de-indexation on all the versions of this engine.

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