Moreover, in the absence of global delinking and takedown orders, the ruling envisions and promotes more geo-blocking—that is, the suppression of certain internet content only in countries that forbid it. But while the kind of geographic segmentation envisioned and promoted by the ruling is in many ways preferable to global censorship orders, it too has its downsides—potentially fostering increased censorship on the local level, in ways that exacerbate local repression.
Yesterday’s judgment resolves a long-standing dispute between France and Google over the right to be forgotten, which is intended as a means of promoting individual privacy rather than as a restriction on free expression. Now enshrined in EU law, the right enables citizens and residents of the bloc to demand that a search engine or website delete or unlink personal information they deem obsolete or excessively intrusive, even if true, and even in the absence of a finding of prejudice. Google and other search engines must delink offending webpages from a search of an individual’s name, even if the underlying article or webpage is lawful and remains online. It, in effect, provides a right of curation—enabling individuals to manage their own reputation online, and to avoid having an embarrassing news article, or an arrest on a charge that was later dropped, follow them around throughout their life.
This right has been actively employed. In the five years since the European Court first announced the right, Google has received more than 846,000 requests to delist a total of 3.3 million URLs. Google has granted the requests approximately 55 percent of the time. (Notably, some 20 percent of the demands came from 1 percent of the requesters. According to Google, many of these repeat requesters are reputation-management services and law firms.)
France, which deems the right a fundamental aspect of the right to privacy, has long argued that Google must delink the information globally. No one anywhere, the country argues, should be directed to a webpage that an individual has successfully suppressed via the right to be forgotten. In France’s view, this is the only way to adequately protect individuals’ rights.
Google, by contrast, argues that the right to be forgotten butts heads with other fundamental rights, including the speech-related right to access information that is lawful and true. To balance these competing interests, Google delinks the relevant webpages when users search an affected person’s name from within Europe. But the links are still visible to those who search the same name from outside the EU. Using geo-blocking, Google asserts that it can make the geographic distinctions with approximately 99 percent accuracy.
Ruling in Google’s favor, the European Court concluded that EU law does not require delinking to be global. But the court left open the possibility that the EU could demand global delinkings in the future—so long as the law is rewritten to explicitly allow it to do so. And irrespective of EU law, individual nations can still demand worldwide delinking if their laws and their court systems permit it. In other words, global delinking and takedown orders are hardly off the table.