Expert: Google Cannot Escape French Law on Right to Be Forgotten

It's proving to be an uphill battle for Google in the European Union. France's top privacy watchdog denied its appeal to limit the "right to be forgotten" ruling of European Court of Justice.

An expert on Internet Regulation and Governance said Google can not escape abiding by French law.

In an email interview, Prof. Viktor Mayer-Schönberger said, "My reading of the CNIL decision is not that it requires US courts to apply French laws, only that Google cannot escape abiding by French law."

Prof. Mayer-Schönberger explained that nations, such as France, has long maintained that their laws have "extra-territorial" effects, further stating that the US, where Google has its principal office, has "done so for many decades".

Prof. Mayer-Schönberger is a professor of Internet Regulation and Governance at the Oxford Internet Institute, University of Oxford.He had also taught in Harvard University as a member of the faculty and wrote several award-winning books on the Internet.

Google has sought to limit this effect by appealing that the ECJ's ruling last year be made applicable only its search domain in France and in Germany. It was denied by France's CNIL.

You may read the full text of the statement of CNIL on Google's appeal, as follows:

The President of the CNIL rejects Google's informal appeal against the formal notice requesting it to apply delisting on all of the search engine's domain names.

Since the European Court of Justice ruling of 13 may 2014, which recognized the right to delisting, any individual may ask a search engine to remove one or more results displayed following a search made on the basis of his name.

Google received several tens of thousands of requests from French citizens. It delisted some results on the European extensions of the search engine (.fr; .es; .co.uk; etc.). However, it has not proceeded with delisting on other geographical extensions or on google.com, which any internet user may alternatively visit.

In May 2015, the President of the CNIL therefore put Google on notice to proceed with delisting on all of the search engine's domain names. At the end of July, Google filed an informal appeal asking the President to withdraw this public formal notice. Google argued in particular that it would impede the public's right to information and would be a form of censorship.

In the light of the applicable legal framework, the President has decided to reject this informal appeal, in particular for the following reasons: 

• Geographical extensions are only paths giving access to the processing operation. Once delisting is accepted by the search engine, it must be implemented on all extensions, in accordance with the judgment of the ECJ.
• If this right was limited to some extensions, it could be easily circumvented: in order to find the delisted result, it would be sufficient to search on another extension (e.g. searching in France using google.com) , namely to use another form of access to the processing. This would equate stripping away the efficiency of this right, and applying variable rights to individuals depending on the internet user who queries the search engine and not on the data subject.
• In any case, the right to delisting never leads to deletion of the information on the internet; it merely prevents some results to be displayed following a search made on the sole basis of a person's name. Thus, the information remains directly accessible on the source website or through a search using other terms. For instance, it is impossible to delist an event.
• In addition, this right is not absolute: it has to be reconciled with the public's right to information, in particular when the data subject is a public person, under the double supervision of the CNIL and of the court.
• Finally, contrary to what Google has stated, 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.

Since the informal appeal has been rejected, the company must now comply with the formal notice. Otherwise, the President of the CNIL may designate a Rapporteur who may refer to the CNIL's sanctions committee with a view of obtaining a ruling on this matter.