In the battle of free speech now it’s France v Google

The so-called “right to be forgotten”, now compressed to RTBF, is climbing back up the news agenda. It all stems, you will recall, from a landmark decision by the 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 Google search results. The judgment came as a surprise to most of us and as a really big shock to Google. But over the past year, the company has found a way of complying with the judgment – 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 “forgotten”, because the material in question still remains online. It’s actually a right not to be found by Google. But since most people in Europe use their local version of the company’s search engine (for example, or, and 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 – and has assets in – 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,, they remain visible on search results from, which is easily accessible from any European country.

It turns out that some of Europe’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 “the 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.”

Illustration by Matt Murphy.

Peter Fleischer, Google’s global privacy counsel, is understandably rattled by the extraterritorial pretensions of the French. “While the right to be forgotten may now be the law in Europe,” he writes in a blog post, “it 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 criminalises some speech that is critical of Atatürk, and Russia outlaws some speech that is deemed to be ‘gay propaganda’. 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.”

Mr Fleischer is right. The logical consequences of the French demands are absurd. As Jonathan Zittrain, the Harvard law professor, puts it: “France 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.” The French regulator’s order, if enacted, would “prevent Americans using an American search engine from seeing content that is legal in the United States”.

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 can’t see any American administration accepting a judgment that so flagrantly contravenes the first amendment. So we will be back to square one – 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.

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