French Right To Be Forgotten Approach Threatens International Comity

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Just as everyone was headed out of Washington for the Memorial Day weekend, CNBC did a report on Google’s Two Years of Forgetting Europeans. It was a useful summary of the material Google publishes in its transparency report on European privacy requests for search removals.  It noted such interesting facts as that Google has removed 43% of the URLs they have reviewed and processed and that Facebook was the most frequently removed URL.

But the report strangely missed a major legal development that threatens a stable international understanding about the limits of domestic law in age of global communications networks.

This stable understanding is that national governments have control over the Internet within their own borders.  They have right and the obligation to make the rules of the road for Internet conduct occurring within their own borders. But they don’t have the right to extend their local laws to Internet conduct within the jurisdiction of other countries.

The U.S. itself follows this rule.  Despite the fact that Internet gambling is legal in most jurisdictions in the world, the U.S. prohibits it in the U.S.  To enforce that restriction, U.S. law forbids financial services companies to process any U.S. transactions for illegal Internet gambling transactions.  But that U.S. law explicitly allows U.S. companies to process transactions within and between jurisdictions where Internet gambling is legal.

What does this principle of living under local law have to do with the right to be forgotten? The May 2014 European Court of Justice ruling granting European citizens a right to be forgotten did not say whether search engines should delete results for the country of the data subject, all of Europe or the entire world.

Google interpreted the European court ruling to mean that it should remove search results (1) on all European domains, regardless of where a user accesses the European domain, and (2) on any domain when the search is conducted from the European data subject home country.  But the search result would still be available to users in the rest of the world, where European privacy laws and court decisions do not apply.

The French data protection regulator ruled that this was not protective enough.  People in the rest of the world would still have information that was a violation of the privacy rights of European citizens.  They ordered search engines to globally block search results that were privacy-invasive under European law.  Google has appealed to France’s Supreme Administrative Court, the Conseil d’Etat.

The principle at stake is enormously important for international comity.  The international character of the Internet creates opportunities and dangers for the free flow of information. It creates the possibility that users in one part of the world can instantaneously share views, information, beliefs, and attitudes with other users in any other part of the world.  No previous communication technology had this combination of global reach and accessibility to ordinary citizens worldwide.

But the Internet also allows countries to export their own laws more easily now than ever before.  The Internet depends on global intermediaries to provide global connectivity and platform services that enable the free flow of information. Governments can control the local activities of these global companies, and could require them to enforce local laws throughout the world as a condition of doing business locally.  The U.S. could have required U.S. payment processors to block all Internet gambling transactions everywhere.  But we chose to forbear and just agree to disagree with the rest of the world on the morality of Internet gambling.

Other countries also forbear.  At one time, Turkey excluded Internet platforms that allowed content critical of the Turkish nation.  Now they allow these platforms to operate in Turkey provided they block access to offending material for Turkish users.  They continue to think this content is abusive and insulting, but they allow Internet platforms is provide it to users in other countries.

This forbearance is essential in an age of global communications.  Every country in the world has values that they think are paramount, that pertain to the fundamental nature of people in society and that need to be protected as a matter of collective identity or individual rights.  But we have to live together in a world where we do not all agree on these things.  International forbearance is the way we implement this need to all live together in an interconnected world.

Some content is so universally condemned and dangerous that Internet platforms themselves have global rules against it.  This is the case for hate speech, terrorist activity and incitement to violence.

But the European right to privacy has not achieved anything like an international consensus.  No other country has followed the European lead, and it almost certainly could not pass constitutional muster in the U.S.  It remains an agree of fundamental disagreement.

The wisest course of action for European courts reviewing this case is to preserve good relations among countries and limit enforcement of the European right to be forgotten to Europe.

Mark Mark MacCarthy, Senior Vice President, Public Policy at SIIA, directs SIIA’s public policy initiatives in the areas of intellectual property enforcement, information privacy, cybersecurity, cloud computing and the promotion of educational technology. Follow Mark on Twitter at @Mark_MacCarthy.