The ‘European' Right To Be Forgotten: European Court Decision Recognises Territorial Limits And Rejects Systematic De-Referencing

Author:Mr Samuel Goodman and Danielle N. Craft
Profession:Arnold & Porter
 
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In a landmark ruling last week, the Court of Justice of the European Union (CJEU) has held that Google is not required to carry out a de-referencing (effectively, the "right to be forgotten") on non-EU versions of its search engine.

The case was brought by Google on appeal, having received an initial fine of €100,000 from the French data protection regulator, CNIL, back in 2016 after it had ruled that Google's self-imposed restriction to only de-reference on European versions of its search engine (as opposed to its global platforms) was unlawful.

However, the CJEU did hold that its ruling should not be implied as releasing search engine operators from the obligation to take measures that prevent or discourage other EU internet users from accessing relevant references to the individual. The CJEU will leave it to the EU member states' national regulators to assess these measures. The CJEU further recognised that, in limited cases, those measures may still require search engine operators to carry out a de-referencing concerning all versions of that search engine on a global scale.

Whilst the future effect of the CJEU's ruling on EU member states and individuals is apparent, the impact may still be felt by US-based businesses and individuals in various ways:

Virtual Territorial Wall: In what is otherwise a borderless Internet, the decision creates a virtual territorial wall which makes de-referenced material inaccessible on search engines within the confines of the EU. Under the decision, the right to be forgotten applies only in EU territories, which means that there is no blanket requirement for operators to remove de-referenced search results across all versions of a search engine that are accessible outside the EU. For example, using the same search criteria, search results in France on Google.fr may differ from search results in the US on Google.com. Thus, potentially disparaging information may be "forgotten" in the EU, but will remain accessible in the US In some circumstances, the de-referencing maystill be ordered in the US: Whilst de-referenced search results will remain available in the US (for the most part), the decision did not foreclose the possibility that de-referencing may occur across all versions of a search engine. The ruling explicitly stated that the supervisory or judicial authority of any Member State may order an operator to de-reference all of its versions (in the EU and elsewhere) after weighing the data subject's...

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