by Mark MacCarthy

Globalizing the right to be forgotten sets a dangerous precedent

Apr 06, 2016

The European courts must reject French privacy regulator CNIL's efforts to globally apply the European right to be forgotten, which sets a dangerous precedent for international censorship

On March 24, the French privacy regulator, Commission Nationale de l’Informatique et des Libertés (CNIL), fined Google 100,000 Euros and confirmed its intent to globalize the European right to be forgotten. Expanding this European privacy rule has unsettling implications for Internet freedom in a world with conflicting values. The European courts must reject CNIL’s attempt at international censorship that sets a dangerous precedent.

The European right to be forgotten has always had global implications. When a search engine determines that a website contains invasive information about a European citizen, it must delist the website link, regardless of whether the website has any connection to Europe or targets European audiences.

Until now, that delisting applied only to searches coming from Europe. CNIL, however, wants search engines to delist “regardless of the geographical origin of the person performing the search,” which would apply the European right to be forgotten globally.

The impact of the CNIL approach is enormous. It means one nation’s local norms and specific definitions of restricted content can be imposed on the world. For example, China could say that the defamation of its leaders and institutions must stop in the international press or it will ban foreign reporters from its shores.

CNIL denies this is what it is seeking since the right to be forgotten “does not entail any deletion of content from the Internet.” Even if the search result is delisted, CNIL argues the underlying information is still available on the Internet. But the reality remains that without search results no one can find the information. It is as if a government claims that it had not banned a book because it had merely forbidden online bookstores from returning results with the book’s title from electronic catalog searches.

We often hear the argument that a worldwide approach is justified because privacy is a fundamental human right, and that universal human rights should apply everywhere. Privacy is indeed a fundamental human right — but only Europe has gone as far as saying that it must include the right to be forgotten. Where other countries have pursued similar policies, they have been more narrowly focused. For instance, Russia’s draft law focuses on defamation, and Korea’s law relates to self-authored content. This lack of consensus favors international comity.

Moreover, there is another fundamental human right as defined by Article 10 of the European Convention on Human Rights — the “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

Europe does not want to think of itself as a global censor. It has often taken the lead in expressing outrage against infringements of the internationally recognized right of free expression and rejected efforts to impose such global bans. It did so most recently in resisting a call from Turkey’s Prime Minister Erdogan to remove a satirical video from the Internet.

But regardless of its stated intentions or justifications, Europe is in fact clearly setting itself up as a global censor. If the right to be forgotten did not involve the suppression of content, then aggrieved individuals would have no interest in it. People who ask to have invasive stories delisted from search results are seeking to restrict the flow of information about themselves. To celebrate this result as a vindication of privacy rights is certainly possible. To simultaneously deny that information flows have been impeded is disingenuous and inconsistent.

There is no question of Europe’s commitment to the rule of law, democracy and international human rights. But globalizing the right to be forgotten is a step toward international censorship and creates a dangerous model that is likely to be emulated by other countries with far less commitment to human rights. Europe can draw back from this, but only if European courts step in to overrule CNIL’s overreach.