Is the Right to Be Forgotten Global?

The Court of Justice of the European Union is hearing arguments on whether the right to be forgotten under EU law (notably based on the Spanish case from 2014 that started all this discussion) should be applied globally by search engines. Here is The Guardian’s report.

You will notice that the report closes with a mention of the Canadian Supreme Court decision (in Equustek, not named) where the court made its takedown order against Google globally. I did not think the SCC dealt well with the arguments being raised at the CJEU, namely that if France, or Canada, can make global search engines comply with its legal (and thus moral) standards, so can all sorts of places whose standards we are much less comfortable with – and why not *all* of them?

The arguments for restricting the impact of EU law to the country of the complainant or at least to the EU were made by a coalition of NGOs led by a human rights advocacy group known as Article 19 (referring to the UN Convention on Human Rights), mentioned in the article. The University of Ottawa’s Candian Internet Policy and Public Interest Clinic (CIPPIC) is part of that coalition. Here is the written submission of the coalition of NGOs to the court. See the summary of its position in paragraph 5. [h/t to Tamir Israel for the brief]

What should the CJEU rule? Is there a way to distinguish Equustek, say because it was about an intellectual property dispute and not about privacy, which engages freedom of expression and thus human rights generally, more than IP does?

Do those (including, I believe, some or most of our privacy commissioners) who believe that current Canadian law includes a right to be forgotten, or should be amended to create one, have a good answer to the concerns discussed in The Guardian article?

Comments

  1. David Collier-Brown

    I read the SCC decision as limiting the decision to
    – a preliminary injunction (with some problematic aspects) and
    – commercial speech about a stolen product.

    It’s not clear to me what the court feels about the broader questions.

    In the general case, I’m disappointed that only the original Spanish case ever considered that the _publishing site_ controls Google’s listing, and that is (https://leaflessca.wordpress.com/2018/03/28/de-indexing-unexpectedly-solved/)

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