Thursday, 7 of February of 2019

Last January brought new developments regarding to the interpretation of the right to be forgotten. In particular, on 10th January 2019, the Advocate General Szpunar delivered his opinion regarding the cases C-136/17, “G. C. and Others” and C-507/17, “Google”.

The first case, C-507/17, “G. C. and Others”, is a preliminary ruling that derived from a dispute between four people (two politicians, a member of Scientology and a person accused of paedophilia) and the CNIL (Commission for Information Technology and Civil Liberties, of France), that refused to take measures against Google for failing to de-referencing various links from search results.

The Advocate General suggests to the ECJ to oblige the search engine operators “to systematically accept” requests for de-referencing links to web pages on which sensitive data appears. However, this “systematically acceptance” is limited by the exception of freedom of expression, provided in the Directive 95/46, and by the right to privacy. For that reason, the search engine provider should do a careful balance between both right to privacy right to protection of data with the right of the public to access the information concerned and the right to freedom of expression.

The second case, C-507/17, “Google”, is another preliminary ruling that – once again - derived from a dispute between Google and the CNIL. The search engine operator appealed a euro 100.000 fine imposed by the French Data Protection Authority after the company refused to remove web pages that made reference to a natural person from all domains (rather than just EU Member State domains). Is the de-referencing obligation imposed to a search engine operator limited to the EU borders or should it be global?

In his conclusions, the General-Advocate Szpunar, in primis, held that the European normative does not regulate the territorial aspect of the de-referencing, hence, it is not keen on doing a broad interpretation of European Union law as to produce effects beyond the borders of the EU. According to the Advocate General, a careful balance between the right to be forgotten and the legitimate public interest in accessing the information sought should be done. The General–Advocate believes that all searches made from out of the EU should not be affected by the de-referencing. The obligation of search engines would be restricted to searches carried out from an IP address located in the European Union regardless of the territorial or generic domain name of the search engine from which it is carried out.

We look forward to the deliberation of the Court of Justice of the European Union on these matters, to see if it confirms the interpretation of the Advocate General.