Google v CNIL: Court of Justice limits territorial scope of the Right to be Forgotten

24 Sep 2019 | by Monckton Chambers

Google vs Commission nationale de l’informatique et des libertés (CNIL)

In a landmark judgment for freedom of expression and access to information, the Court of Justice of the European Union has today held that the ‘Right to be Forgotten’ under EU law does not require search engines to de-list search results on a global basis.

The case, C-507/17 Google Inc v Commission nationale de l’informatique et des libertes (CNIL), concerned a complaint brought by Google against CNIL, the French data protection regulator, in relation to a number of de-referencing requests made in the wake of the CJEU’s decision in Case C-131/12 Google Spain – the so-called ‘Right to be Forgotten’. CNIL had ordered Google to de-index links to news reports by reference to certain named individuals in order to protect their personal data, not only on the Google.fr domain name extension but also worldwide. Google challenged the scope of the de-referencing orders, following which the Conseil d’État made a preliminary reference to the CJEU.

In today’s judgment, the CJEU held that the Right to be Forgotten – now enshrined in article 17 of the GDPR – did not require a search engine to carry out a request for de-referencing on a global basis but only within the territory of the EU itself. Among other things, the Court observed that “the balance between the right to privacy and the protection of personal data, on the one hand, and the freedom of information of internet users, on the other, is likely to vary significantly around the world” (para 60) and that EU law did not provide any mechanism for balancing those interests outside its territory. The right to personal data, the Court held, was “not an absolute right, but must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality”.

Gerry Facenna QC, Eric Metcalfe and Guillaume Tapie of the French Bar acted for ARTICLE 19, Human Rights Watch, the Electronic Frontier Foundation, Derechos Digitales, the Centre for Democracy and Technology, the Clinique d’intérêt public et de politique d’Internet du Canada, Open Net Korea and Pen International – a coalition of 7 international digital rights organisations who were granted permission to intervene in the proceedings, arguing that global de-referencing orders were an inherently disproportionate interference with the rights to freedom of expression and access to information.

The CJEU judgment is available here and ARTICLE 19’s press release can be read here. The judgment has already received considerable media attention, including from the Wall Street Journal, the New York Times, the Los Angeles Times, the Daily Telegraph, the Financial Times, and the BBC.