Can We Forget About the Right to be Forgotten

Michael From our Perspective

If you thought that the news of Google having to remove stories about removing stories was bad- wait until you hear what the French are doing.

About a month ago, UK’s Information Commissioner’s Office (ICO) ruled that not only does Google have to comply with the right to be forgotten law; they also must ensure that websites that talk about the removed results be removed from search results as well. Essentially, forget what has been forgotten. This came about after an individual requested that his criminal record be expunged from Google’s search results. This story then resulted in nine additional results talking about the removal.

In a  severely less comical move this week, the French Commission Nationale de l’Informatique et des Libertés (CNIL) rejected an ‘informal appeal‘ by Google over its recent ruling to extend right to be forgotten rules.

Already, the right to be forgotten laws force Google to remove results that have been requested from all European domains such as google.co.uk and google.fr. This in itself is already quite expansive. A result that is requested to be forgotten in one country also applies to the 27 other member States of the European Union.

This is quite a big deal in Europe where Google has a market share of 90%: considerably more than its American share of about 68%.

The Global Expansion of the Right To Be Forgotten

This new move by the French, however, states that not only must all of Europe forget- but so should the entire world. The French CNIL said in September of 2014, and upheld this week, that Google will need to remove approved right to be forgotten results from their global domain- google.com. The CNIL highlighted that accessing removed links could easily be done by using one of Google’s other domains.

That’s right. The European Union is attempting to dictate what the rest of the world will see when searching on Google.

In exact contradicion to the ruling the CNIL said:

…this decision does not show any willingness on the part of the CNIL to apply French law extraterritorially. It simply requests full observance of European legislation by non European players offering their services in Europe.

There Are No Buts

Google filed its informal appeal in July. And apparently that’s about all it can do at this point. At this stage Google has no right to appeal further. They can either comply or not comply.

The implications of going along the with French’s right to be forgotten expansion are paramount. As Peter Fleischer puts it:

If the CNIL’s proposed approach were to be embraced as the standard for Internet regulation, we would find ourselves in a race to the bottom. In the end, the Internet would only be as free as the world’s least free place. We believe that no one country should have the authority to control what content someone in a second country can access.

In order to incentivize Google to go along with the ruling the French government is able to impose some costly sanctions. In November of last year the Paris Tribunal de Grande Instance threatened daily €1,000 fines if Google didn’t take down right to be forgotten results on their global domains.

With current laws the French can hit google with a fine of €300,000 ($336,000) if Google fails to comply. Which is chump change to the tech giant. But legislation currently in the works could boost the sticker price for not complying up to 2-5% of global operating costs. This means that Google would then face a fine of $1 billion to $2.5 billion (€900 million-2.2 billion).

Needless to say, this is a landmark case. No netizen wants an uncontrollable race to the bottom that leaves ‘the Internet only as free as the world’s least free place.’ It is easy to imagine legal and relevant information being censored from search results in the future because of right to be forgotten. And with the implementation of global search result censorship it only exacerbates the problem.

So, it is probable that Google may test the ruling and get the fines imposed on them. It’s unlikely that any government action would go against the CNIL’s cause. Although the upside to getting fined is that is that once they are administered Google can formally challenge the ruling in the French supreme court. Which may be their only chance to maintain an uncensored global Internet.

Can we please forget about this forgetting thing?

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