One country’s government shouldn’t determine what Internet users across the globe can see online. But a French regulator is saying that, under Europe’s “Right to be Forgotten,” Google should have to delist search results globally, keeping them from users across the world. That’s a step too far, and would conflict with the rights of users in other nations, including those protected by the laws and Constitution of the United States.
EFF joined Article 19 and other global free speech groups in a brief to the Conseil d'Etat asking it to overturn that ruling by France’s data protection authority, the Commission Nationale de l'Informatique et des Libertés' (CNIL). The brief, filed Nov. 23, 2016, argues that extending European delisting requirements to the global Internet inherently clashes with other countries’ laws and fundamental rights, including the First Amendment in the U.S.
The European Union’s Court of Justice ruled in 2013 that Europeans have the right to demand that certain links be taken out of search engine results. But the French CNIL vastly expanded the effect of these requests when it said in 2015 that Google must remove links from not just search results returned within the EU, but from search results for everyone, anywhere in the world. This interpretation of the Right to be Forgotten runs contrary to policy and practice outside Europe, will harm the global Internet, and inherently undermines global rights, including those protected by the Constitution in the United States. For an in depth analysis, read our legal background document.
As we wrote in the brief, “delisting (particularly when it is conceived in as extensive a manner as CNIL’s approach) appears incompatible with the [U.S.] First Amendment” which protects “the right to publish information on matters of public interest that [publishers and speakers] acquire legally, even in the face of significant interests relating to the privacy of the interested parties.”
This ruling would trample not only on the free speech rights of Google and others who post search results, but also on Internet users’ right to receive information. U.S. courts have consistently upheld that the First Amendment’s protections for expression, petition, and assembly necessarily also protect the rights of individuals to gather information to fuel those expressions, petitions, and assemblies. As Ninth Circuit Chief Judge Mary Schroeder wrote in a 2002 ruling protecting the right of patients to learn about medical marijuana, “The right to hear and the right to speak are flip sides of the same coin.”
The ruling also contradicts another tenet of laws governing online speech: in the United States, intermediaries like Google are generally not held legally responsible for publishing or hosting information created by others. Section 230 of the Communications Decency Act gives Internet platforms broad protections from liability resulting from publication as long as the platform didn't play a role in creating the content. Lawmakers put that protection in place because, without it, Internet platforms from Yelp to individual bloggers would have to police every search snippet, comment, or other pieces of user-generated content to avoid facing the kind of fines that could put an Internet platform out of business. Intermediary liability protections are a feature of the Internet across the world, and a vital part of protecting the rights of intermediaries and their users online.
Europe’s “Right to be Forgotten” is also at odds with a broader right in other countries to publish information about official government activities, including information about things like arrest records, which have been at the center of high-profile Right to be Forgotten cases in Europe. Most U.S. states have recognized a Fair Report Privilege, which protects those who report accurately about government activity from legal claims, including invasion of privacy. That right is trampled on if companies like Google are forced to universally delist search results about government activities.
These free speech rights apply when people in the U.S. use the Internet; neither the U.S. nor the French government should interfere with them. As our colleagues in our submission explain, France’s unilateral declaration of universal jurisdiction would impact rights in the rest of the world. If the CNIL decision stands when the Conseil d'Etat considers our appeal next spring, it would not just permit France’s rules to trump those of any other nation, it would also open the floodgates for every country to enforce its own limits on free expression and freedom to receive information globally. In that race to the bottom, everyone will lose.