AAN Joins Coalition Urging French Data Regulator to Reconsider ‘Right to be Forgotten’ Delisting Order

At first blush, maybe a letter to Commission nationale de l’informatique et des libertés (CNIL), France’s privacy regulatory body, may not seem to be something AAN members would be interested in. Read on and I think you’ll understand why we decided that AAN had to join this letter drafted by the Reporters Committee for Freedom of the Press which asks CNIL to withdraw notice it sent to Google on May 21, 2015 that threatens online speech worldwide.

This all dates back to the May 2014 of the Court of Justice of the European Union regarding what has come to be known as the “right to be forgotten.” In that decision, the Court said that search engines have to comply with requests from individuals to “delist” stories about those individuals that, though the passage of time, are “inadequate, irrelevant or no longer relevant, or excessive.” The story itself doesn’t have to be removed from the original site, but Google, Bing, Yahoo! etc would have to remove these from their search results.

That was bad enough but now the Director of CNIL has taken another step, telling Google that it must enforce this right to be forgotten/right to delist not just in France, not just on Google.fr, not just in EU countries, but across the world, i.e., on any Google site, including Google.com. The net effect is that the tail would be wagging the dog; a request filed in France would result in a story being delisted worldwide. The CNIL order also says that the search engines cannot even notify the individual website that a particular piece has been delisted, so there’s effectively a gag order on top of the censorship.

Google has asked CNIL to withdraw this notice. This letter supports the Google request.

Our letter makes several arguments to the CNIL. First, we note that France’s unilateral move would upset the internet on a worldwide basis, likely triggering much more repressive societies to take actions of a similar nature. Even as bad as the right to be forgotten might seem to us, it does have somewhat rational limitations. A valid takedown request by France would be executed at .fr, by Turkey at .tr, by China at .cn, by Russia at .ru, and so on.” But under the requirements of this order, a single request accomplishes all this and thus creates a least common denominator situation. Again, a quote from the letter itself “France should not become the first mover in a contest that the most suppressive regimes around the world will be destined to win.” Indeed, France itself may come to regret this decision when more repressive regimes censor French speech.

Second, France’s reliance on the “accessibility” of speech on the internet is unworkable and overly broad. Every website in the world is theoretically accessible from any computer in the world. Because speech from anywhere is accessible anywhere, there is no limit whatsoever. Some of you may be familiar with “Libel Tourism.” It was a buzzword a few years ago, applying to situations where defamation plaintiffs would search for the most hospitable location in which to file suit (such as a Saudi Prince suing an American in London). This could give rise to “Content Cleansing Tourism”.

Third, search engines must be able to notify publishers of the delisting. Withholding information about a delisting is akin to a removal of the information itself. Moreover, notification to the actual websites provides context that is critical for those sites to determine whether they should fight back.

Finally, we ask that the CNIL balance it’s privacy concerns with the right of free expression found in Article 10 of the European Court of Human Rights.

So I hope the importance is clear. While AAN members won’t be directly affected because they are not subject to delisting requests, your speech will be censored and their newsgathering abilities hindered. If someone doesn’t like a story that was written about them years ago which is archived on your website, 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 our members worldwide (even here in the US) but it also prevents 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).