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Google ruling puts Europe’s ‘right to be forgotten’ law back in focus

France’s data protection regulator has said that when Google removes a link from its search engine to comply with European law, it must delist that result for users everywhere, and not just in France.

DADO RUVIC/REUTERS

A ruling from France's data protection regulator has put Europe's controversial "right to be forgotten" law back in the spotlight, as the country's efforts to scrub certain online search results worldwide spark concerns about a nation's power to censor parts of the Internet across borders.

Last week, Google Inc. appealed a ruling by France's Commission nationale de l'informatique et des libertés (CNIL) to that country's top administrative court. The CNIL has said that when Google removes a link from its search engine to comply with European law, it must delist that result for users everywhere, and not just in France.

Europe's right to be forgotten passed two years ago in a landmark ruling by the Court of Justice of the European Union (CJEU), allowing Europeans to apply to have certain search results linked to their own names removed. The CNIL argues those removals must be global to fully protect Europeans' privacy, and in late March, the regulator fined Google €100,000 ($147,370) for not complying.

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The CNIL's attempt to extend the jurisdiction of the right to be forgotten beyond European borders has parallels with a Canadian case before the Supreme Court: Once again, Google is challenging an order requiring it to stop listing a firm accused of trademark violations, Datalink Technologies Gateways Inc., across its worldwide search results. And late last month, Canada's Privacy Commissioner closed a call for submissions about reputation and online privacy that asked, among other things, whether the right to be forgotten has a place in Canadian law.

"It's not just a theoretical exercise at this stage," said David Fraser, a lawyer at McInnes Cooper who specializes in Internet, technology and privacy issues. "It is a real potential rabbit hole. There is no kind of global Supreme Court that will be the final word on this."

At stake is a common principle of international law that regulations should stay confined to the territory that crafts them, according to the CNIL's detractors.

"One country shouldn't get to make the rules for what happens in another country," David Price, senior product counsel for Google, said in an interview.

Since the right to be forgotten was enshrined in law in 2014, Google has received 431,000 requests to remove 1.5 million links from its search results, as individuals, public figures and companies concerned about potentially embarrassing online footprints seek to control what others can find out about them. Google has granted about 43 per cent of the applications so far.

The search giant considers itself an online intermediary, and would prefer not to be an arbiter of users' reputations. A team assesses each request "by hand," Mr. Price said, but even that process can be problematic. Google sees only what the complaining user submits, and important context can be left out. Furthermore, "the public interest may change after the public delisting takes place," Mr. Price said – for instance, if a user later decides to run for public office.

Right to be forgotten advocates point out that when a request succeeds, the content remains on the original website, and only the search result pointing to it is removed. But news organizations, which have been among the law's most vocal critics, contend the law provides a mechanism to hide truths and obscure the public record.

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Deindexing ethical, well-reported stories "is tantamount, in today's world where everyone finds things through search engines, to completely censoring them," said Tom Henheffer, executive director of Canadian Journalists for Free Expression.

The Office of the Privacy Commissioner of Canada received 23 formal submissions to its consultation on reputation and privacy from academics, industry associations, lawyers and media organizations. The privacy watchdog plans to issue a policy position to inform Canada's path forward.

"The law is broadly struggling to address these issues, and so we thought it was a legitimate question to ask," Patricia Kosseim, senior general counsel and director-general in the Privacy Commissioner's office, said in an interview.

The issue of global removals raised by the ongoing court cases in France and Canada promises to amplify the debate. Whether a private citizen's old social-media posts or appearances in news articles remain relevant to an online audience is one matter; whether a regulator in France, Russia or Saudi Arabia should be able to dictate the removal of search results in other countries could be quite another.

"Courts and regulators should think carefully before they seek to impose extraterrestrial orders," Google's Mr. Price said. "If you export global removals, you may import them, and your trade balance may not be in your favour."

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