The so-called â€œright to be forgottenâ€, now compressed to RTBF, is climbing back up the news agenda. It all stems, you will recall, from a landmark decision by theÂ European court of justice mandating that European citizens had a right to demand that links to online material about them that was deemed to be misleading or inaccurate should not appear in GoogleÂ search results. The judgment came as a surprise to most of us and asÂ a really big shock to Google. But overÂ the past year, the company has found a way of complying with the judgment â€“ by setting up a process for handling requests for delisting and deleting successful applications from search results in all of its European search engines.
Leave aside for a moment the fact that RTBF is not a right to be â€œforgottenâ€, because the material in question still remains online. Itâ€™s actually a right not to be found by Google. But since most people in Europe use their local version of the companyâ€™s search engine (for example,Â google.co.uk or google.fr), andÂ since Google had devised an efficient system for processing requests, it looked as though a pragmatic solution to a thorny problem had evolved.
That thorny problem is the disjunction between local laws and a global network. Although Google is an American company, it had no option but to comply with the ECJ ruling because it trades with â€“ and has assets in â€“ all the countries in the European Union. But because it is based in the US, it also has to obey the laws of that particular land. And in the US, the first amendment to the constitution means that people take a very dim view of any interference with free speech. Sanitising Google search results to comply with the rulings of a foreign court would certainly be perceived as such an interference. So while RTBF links are removed from, say, google.fr, they remain visible on search results from Google.com, which is easily accessible from any EuropeanÂ country.
It turns out that some of Europeâ€™s data protection regulators are not amused by this. On 12 June, the French regulator, the CNIL, served Google with a formal notice stating that â€œthe CNIL considers that in order to be effective, delisting must be carried out on all extensions of the search engine and that the service provided by Google search constitutes a single processing. In this context, the president of the CNIL has put Google on notice to proceed, within a period of fifteen (15) days, to the requested delisting on the whole data processing and thus on all extensions of the search engine.â€
Peter Fleischer, Googleâ€™s global privacy counsel, is understandably rattled by the extraterritorial pretensions of the French. â€œWhile the right to be forgotten may now be the law in Europe,â€ he writes in a blog post,Â â€œit is not the law globally. Moreover, there are innumerable examples around the world where content that is declared illegal under the laws of one country would be deemed legal in others: Thailand criminalises some speech that is critical of its king, Turkey criminalisesÂ some speech that is critical of AtatÃ¼rk, andÂ Russia outlawsÂ some speech thatÂ is deemedÂ toÂ be â€˜gay propagandaâ€™. If theÂ CNILâ€™s proposed approach wereÂ to be embraced as the standard for internetÂ regulation, we would findÂ ourselves in a race to the bottom.Â In theÂ end, the internet wouldÂ only beÂ asÂ free as the worldâ€™s least free place.â€
Mr Fleischer is right. The logical consequences of the French demands are absurd. As Jonathan Zittrain, the Harvard law professor, puts it: â€œFrance is asking for Google to do something here in the US that if the US government asked for, it would be against the first amendment.â€ The French regulatorâ€™s order, if enacted, would â€œprevent Americans using an American search engine from seeing content that is legal in the United Statesâ€.
Google is contesting the ruling, so I guess we are in for a long legal wrangle. But even if the French regulator eventually does prevail in the European courts, I canâ€™t see any American administration accepting a judgment that so flagrantly contravenes the first amendment. So we will be back to square one â€“ or at any rate to the point at which it first became clear that a global network designed to enable bits to flow effortlessly across territorial boundaries necessitates a new international legal order to regulate it.
How we evolve such an order is a hard question, especially given that the Americans are as keen on extra-territorial powers as the French. But of one thing we can be sure: fighting it out through local courts is not the way to go.