AAN joined 28 other media organizations and companies on an amicus brief which pushes back against the ever-expanding “right to be forgotten” in Europe. While this concept has not caught on in the US (and hopefully never will), its effects can be felt here as access to online content is rendered nearly impossible when search engines must remove links to articles simply because an individual demands that it be so.
If you’re not familiar with the “right to be forgotten”, it dates back to a May 2014 decision of the Court of Justice of the European Union which said that search engines must comply with requests from individuals to “delist” stories that have become “inadequate, irrelevant or no longer relevant, or excessive.” While the story itself does not have to be removed from the Internet entirely, it would become virtually impossible to find.
Enter the French privacy authority, La Commission Nationale Informatique et Libertés (CNIL). The Director of CNIL issued a decision which forced Google to delist stories not just in France or EU countries but worldwide once a right to be forgotten request was filed. Further, Google cannot even notify the website the published the story that the piece has been delisted. Google asked CNIL to withdraw this notice. CNIL refused and eventually issued a criminal penalty to Google for non-compliance. Google has now appealed that penalty to France’s high court for administrative justice.
We joined comments filed with CNIL in support of Google earlier in this case and join this brief to argue that this application of the already awful “right to be forgotten” is entirely overreaching. Our brief argues that:
Extraterritorial application of the right to be forgotten interferes with the rights and freedoms of news organizations under international law and the laws of the various countries around the world. The brief identifies the protections for free expression that exist in virtually all major international treaties and explains how this ruling threatens the right that is generally described in these documents as a right to “seek, receive and impart information”, “regardless of frontiers.” While individual countries can strike their own balance between privacy and speech, freedom of expression is a fundamental right and no single nation should restrict it across the globe. This attempt at restriction is particularly troubling because so many countries, including Google’s home country, do not recognize a right to be forgotten. “Therefore, when the CNIL orders a website delisted in the U.S., it is violating a right that the American people have deemed fundamental and undertaking an act that would be illegal if perpetrated by the American government.” Various orders from the French CNIL implementing the right to be forgotten demonstrate the danger of extraterritorial application, as they involve court orders from the United States; forcing Google to delist these court cases and information actually undermines another constitutional right in the US: the right to a fair trial.
This will have a drastic impact on journalistic freedom and the public’s right to receive information. The French court acknowledged in a 2014 decision that Internet search results are fundamentally intertwined with speech and access to information. As members of the news media, we rely on Google and other search engines not only to make our publications more accessible to others but also to acquire information from afar. The CNIL claims that its order will not interfere with freedom of expression because it “does not erase any content on the Internet or deindex the web pages in question.” Unfortunately, that ignores the way in which people use the Internet to find information (or, put another way, “CNIL vastly understates the consequences of global delisting.”). Search engines are the primary point of entry for those seeking information on the Internet. The order misleads the public into believing that information simply does not exist.
We are also concerned that this ruling, when combined with others in Europe will threaten reporting around the world. France is not the only nation to employ the right to be forgotten. It exists in Belgium and Italy, and has been extended in the former to include not only search engines but also online news archives; in the latter, the Supreme Court said that journalism – “like milk, yogurt or a pint of ice cream” – has an expiration date. The Italian Supreme Court required that the article in question not just be delisted but removed entirely from the Internet after 2.5 years. Further, it is estimated that more than 30 percent of all right to be forgotten complaints sent to the CNIL involve the media, meaning this decision will have a large impact on journalism. Even more incredible is that Google is not allowed to inform publishers of a delisting in order to give them a chance to participate in the opposition to that request.
It is a foundational principle of international law that every nation must “avoid unreasonable interference with the sovereign authority of other nations.” U.S. courts have respected the right of other nations to apply their own laws within their own borders. It does not force the First Amendment on French courts; we simply ask that French courts do not impose their rulings beyond their borders.
Allowing the CNIL decision to stand would effectively permit aggrieved individuals to “forum shop” their way to France whenever they want information about them to be hidden from public view, no matter where they live in the world. It would make France the arbiter of Internet content; we also fear that other countries would impose similar requirements with even stricter regulation of speech.
This case has the potential for a massive disruption of free speech. While AAN members won’t be subjected to delisting requests, your speech will be censored and your newsgathering abilities hindered. If someone doesn’t like a story that was written about them years ago which is archived on your websites, he or she could ask for it to be “delisted” in France and there would not be much you could do about it. Of course, that not only censors you worldwide (even here in the US) but also prevents your reporters from efficiently researching an individual’s past (for instance, when a criminal act is committed by someone in their community who had previously – years ago – lived and perhaps committed crimes elsewhere). We will continue to fight the expansion of the right to be forgotten – in France, in the rest of Europe and everywhere else.