Google wins the battle about Right to be Forgotten

In a landmark case about privacy versus freedom of speech, the Court of Justice of the European Union ruled yesterday that Google does not have to remove links worldwide when responding to Right to be Forgotten (RTBF) requests.

The court has now ruled that the RTBF applies only in the EU Member States; the operator is not required to carry out de-referencing on all versions of its search engine. It is, however, required to carry out that de-referencing on the versions corresponding to all the Member States and to put in place measures discouraging Internet users from gaining access, from one of the Member States, to the links in question which appear on versions of that search engine outside the EU.

It points out that numerous third States do not recognise RTBF or have a different approach to that right. However, it also says that EU Member States’ authorities remain competent to assess the situation regarding de-listing to achieve balance between privacy and freedom of information.

The case goes back to 2015 when France’s Data Protection Authority, the CNIL, ruled that when responding to RFBF requests, US-based Google had to delist information from Internet search results globally.

Peter Fleischer, Senior Privacy Counsel at Google, said: “It’s good to see that the Court agreed with our arguments, and we’re grateful to the independent human rights organisations, media associations and many others around the world who also presented their views to the Court.”

A second decision also issued yesterday concerns a prohibition on processing certain categories of sensitive personal data. The court says that this applies also to operators of search engines – a balance must be struck between the fundamental rights of the person requesting the de-referencing and those of Internet users potentially interested in that information (such as political opinions, religious or philosophical beliefs and sex life).

With regard to criminal proceedings, the court says that ‘the operator of the search engine must take into consideration all the circumstances of the case, such as, in particular, the nature and seriousness of the offence in question, the progress and the outcome of the proceedings, the time elapsed, the part played by that person in public life and his or her past conduct, the public’s interest at the time of the request, the content and form of the publication and the consequences of publication for that person.’

The decisions concern the interpretation of Directive 95/46/EC (EU Data Protection Directive) and Article 17 of the GDPR which replaced the Directive and includes the ‘Right to erasure’ (right to be forgotten).