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All Posts | Sep 26,2019

CJEU rules that search engines cannot be asked to de-list information globally under EU right to be forgotten requests

CJEU rules that search engines cannot be asked to de-list information globally under EU right to be forgotten requests

On September 24, 2019, Europe’s top court, the Court of Justice of the European Union (CJEU) held that search engines who’ve been requested for de-referencing links under the right to be forgotten (after an order from a supervisory or judicial authority of a member state of the EU) are not obliged to perform the de-referencing from all (global) versions of its service. SFLC.in had intervened in this matter along with other civil society organisations from around the world.

The question was referred to the CJEU by the Conseil d’Etat in France, after Google refused to de-reference information from all its versions (jurisdictions beyond the EU) as ordered by the French data protection authority, the CNIL (Commission Nationale de l'Informatique et des Libertés). The right to be forgotten (RTBF) is a privacy right enjoyed by the citizens of EU member states previously under the personal data protection directive of the EU (Directive 95/46/EC), which has been now replaced by the the General Data Protection Regulation [Regulation (EU) 2016/679] (GDPR). Since this reference was made to the CJEU before the enforcement of GDPR, the court examined the law taking into account both – the personal data protection directive and the GDPR.

The CJEU in its reasoning stated that numerous countries around the world either do not recognize the RTBF (including the right to de-referencing) or have different approaches to it. Referring to GDPR, the court stated that the protection of personal data was not an absolute right and is required to be balanced with competing rights such as the freedom of information of Internet users, as per the principle of proportionality, within the EU, such a balance has not been struck for de-referencing of information which will apply outside the EU. The court also opined that such a balance between these competing rights is likely to vary significantly around the world.

The CJEU clarified that EU law requires search engine operators to carry out de-referencing on all versions of its service which are accessible from EU member states. The court clarified that search engines are also required to implement measures to effectively prevent or seriously discourage Internet users form accessing links on the subject matter of de-referencing from within the EU, but using non-EU versions of the website.

The top court also held that global de-referencing in matters of RTBF are not specifically prohibited under EU law. Local data protection authorities of EU member states have the power to ascertain whether de-referencing is required globally or not after balancing data subject’s right to privacy on one hand and the right to freedom of information on the other hand.

This ruling from the CJEU is a great victory for the freedom of speech on the Internet for all users. If nation states start requesting search engines like Google to de-list links from their global versions, the Internet will practically become the bastion for countries with the most regressive laws on free speech online. The RTBF has been often criticised for enabling bad actors to take down listings from popular search engines, which negatively impacts freedom of information and speech on the Internet, but the CJEU’s recognition of the principle of proportionality and maintaining a balance between the competing rights of privacy and free information in cases of RTBF, puts regulation on the right path.

In a similar case in Canada (Google Inc. v. Equustek Solutions Inc., 2017), where Google was asked to de-index listings for protection of trade secret rights of a subject from its global versions and it refused to do so, the Supreme Court of Canada ruled against Google and ordered a global take down requiring the search engine to de-index the relevant listings from its global versions. This judgment of the Canadian court was heavily criticised by civil society organisations and Internet advocates for violating the free speech and information rights of global Internet users. SFLC.in had also intervened in the Google v. Equustek matter in Canada.

For a detailed analysis of the RTBF and key cases on it, kindly refer to our comprehensive report on intermediary liability, here – Intermediary Liability 2.0 – A Shifting Paradigm.

The provisional text of the judgment as downloaded from the official website of the CJEU, can be accessed, here:

All Posts | Aug 08,2017

Summary Report: Asia Pacific Regional Internet Governance Forum, 2017 (July 26-29th; Bangkok, Thailand)

The 8th Asia Pacific Regional Internet Governance Forum (APrIGF) convened from 26th to 29th July, 2017 at Chulalongkorn University in Bangkok, Thailand, with the objective ofEnsuring an inclusive and sustainable development in AsiaPacific: A regional agenda for internet governance”.

APrIGF is a multi-stakeholder platform for public policy on internet and its impact on society. Since 2010, this prime annual conference draws in discussions and incubates collaborations for the developments of universally affordable, accessible, non-discriminated, secure and sustainable internet across the region. Discussion points from APrIGF are linked to the global Internet Governance Forum in the form of a ‘Synthesis Document’.

This year, APrIGF saw participation from over 550 stakeholders from around the region in addition tothe 60 youth participants alongside at the Youth IGF. The broad topics covered during the sessions included access, empowerment, and diversity; cybersecurity, privacy, and safer Internet; digital economy and enabling innovation; and ensuring human rights online.

SFLC.in was represented by Prasanth Sugathan (Legal Director) and Vaishali Verma (Counsel) at the APrIGF. We organised two sessions at the forum and participated as speakers in two others.

Sessions Organized:

  • Merger 2-Understanding Solutions towards Online Harassment (July 26th, 2:30-3:30 PM):

    This session was co-organised by Digital Rights Foundation, Pakistanand SFLC.in, and followed the panel discussion format. The panelists for this session included Malavika Jayaram (Executive Director, Digital Asia Hub), Lisa Garcia (Gender Coordinator, Foundation for Media Alternatives), Shmyla Khan (Project Manager, Digital Rights Foundation) and Vaishali Verma (Counsel, SFLC.in). The session was moderated by Prasanth Sugathan.

    During the course of the session, Vaishali briefly spoke about the findings of the report prepared by SFLC.in, titled “Online Harassment: A Form of Censorship”, published in November 2016.The session further elaborated upon the practical challenges faced by the victims of online harassment, the efforts being made by various organisations to address these difficulties and the need to make this discussion mainstream.

    Video archive of this session can be accessed here and the transcript here.

  • WS 80- Algorithmic Transparency: Understanding why we are profiled in a certain manner (July 29th, 9:00-10:30 AM)

    This session aimed at understanding the importance of disclosure of algorithms, leading to an increase in privacy awareness through openness and transparency. The panelist for this session were Dr. Virgil Griffith (Scientist, Ethereum Foundation), Arthit Suriyawongkul (Digital Culture and Internet Policy Researcher, Foundation for Internet and Civic Culture), Rajat Kumar (Program Manager -Digital Transformation, Friedrich-Naumann-Stiftung für die Freiheit), Jyoti Pandey (Senior Policy Analyst, Electronic Frontier Foundation), and Vaishali Verma (Counsel, SFLC.in). The session was moderated by Prasanth Sugathan.

    The panelist deliberated upon the need for transparency in algorithms and the effect it would have upon the privacy of the individuals. It was acknowledged that disclosure of algorithms would lead to an increased awareness of privacy amongst the stakeholders. The session delved into the liability assessments in case of malfunction of an algorithm. The panel further discussed the possible ways to facilitate disclosure of algorithms while also balancing the commercial interest with the public interest at the same time.

    The video archive of this session is available here and the transcript here.

Sessions Participated in:

  • Merger 1- Publicness and the Right to be Forgotten: the Debates Begin (July 28th, 11:00-12:30 PM)

    This session was co-organised by Open Net Korea and American Bar Association Rule of Law Initiative. The panel discussed the question of right to be forgotten from the perspective of the visibility of public information, which falls under the realm of the freedom of expression and the right to know, instead of seeing it solely in the context of privacy. Prasanth Sugathan participated in this session on behalf of SFLC.in.

    Official video archive of this session can be accessed here and the transcript here.

  • WS 94 – Engaging with the #KeepItOn Movement: Fighting Internet Shutdowns (July 29th, 11:00-12:30 PM)

    This session was organised by Access Now and reflected on the planned outcomes and developments from the #KeepItOn member organisations. The panelists discussed the status of disruptions and internet shutdowns in Asia-Pacific over the first half of 2017 and explored the opportunities for possible collaborations and initiatives in the region. SFLC.in was represented by Vaishali Verma in this session, who also spoke about the Internet shutdowns trackermaintained by SFLC.in.

    The video archive of this session is available here and the transcript here.