Media Rights Agenda (MRA) has commended the landmark judgment of the Grand Chamber of the Court of Justice of the European Union (CJEU), which on September 24, 2019 resolved the dispute over Google’s responsibility to remove information from the Internet, frequently referred to as the “right to be forgotten”.
In a judgment regarded as important in advancing freedom of expression globally, the court, which is the supreme court of the European Union (EU) in matters of EU law, held that de-referencing requests under the EU Directive can only be applied within the EU, but not worldwide.
MRA’s Executive Director, Mr. Edetaen Ojo, noted that the legal victory was significant because it removed an unwarranted restriction on the right to freedom of expression, arguing that the implementation of the French regulator’s 2015 decision demanding the removal of information from the Internet could result in censorship and an unjustifiable interference with the right to freedom of expression in many countries outside the EU.
The ruling arose from a dispute between Google and French privacy regulator, la Commission nationale informatique et libertés (CNIL), which in 2015, ordered the Internet giant to globally remove search result listings to pages containing damaging or false information about a person.
The matter was referred to the CJEU by France’s Conseil d’Etat, to which Google appealed over the CNIL decision. The issue for determination by the Court was: where a regulator in one EU country requires information to be removed from the internet, should that be given effect in that one country, across the EU or globally?
Concerned about the serious implications of the CNIL’s decision for freedom of expression, particularly in the developing world, 18 NGOs which specialise in the defence of human rights and online freedom of expression in Africa, Asia, Latin America and Europe, including Media Rights Agenda, initially intervened before the Conseil d’Etat in France, while 13 of them, including MRA, also intervened before the CJEU.
The NGOs were represented by barristers Ms Caoilfhionn Gahhagher QC, Mr. Jude Bunting and Ms Jennifer Robinson of the London-based internationally renowned law firm, Doughty Street Chambers, as well as French lawyer, Mr. Thomas Haas.
The 13 NGOs argued before the CJEU that global de-listing will have grave ramifications, far beyond the impact on the rights of Google and that it will undermine freedom of expression and human rights activism around the world.
The 13 NGOs provided a unique perspective as they are based in countries as diverse as Brazil, Colombia, India, Mexico, Nigeria, Pakistan, Senegal, South Africa and Uganda.
In its judgment, the Court agreed with the NGOs, adopting the position put forward by them.
The Court recognised the interveners’ argument about the importance of free speech and that the right to be forgotten is not recognised around the world, remarking that “…it should be emphasised that numerous third States do not recognise the right to de-referencing or have a different approach to that right. Moreover, the right to the protection of personal data is not an absolute right, but must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality… Furthermore, the balance between the right to privacy and the protection of personal data, on the one hand, and the freedom of information of internet users, on the other, is likely to vary significantly around the world.”
The Court also adopted the interveners’ concern that, to date, there has not been proper consideration of the balancing test between the right to privacy of an individual in an EU Member State, from which the right to be forgotten flows, and freedom of speech in a global context, saying: “While the EU legislature has, in Article 17(3)(a) of Regulation 2016/679, struck a balance between that right and that freedom so far as the Union is concerned …, it must be found that, by contrast, it has not, to date, struck such a balance as regards the scope of a de-referencing outside the Union.”
Accordingly, the Court found that there was no requirement to de-reference information outside of the EU.
Reacting to the judgment, one of the lawyers to the NGOs, Caoilfhionn Gallagher QC, said: “ All too often debates about internet regulation focus on Europe and North America only, ignoring the global ramifications. Our clients are a global and diverse coalition which spans the globe – from the Internet Freedom Foundation of India, to Jonction in Senegal, and the Institute of Technology and Society of Rio.”
According to her, “They rely on freedom of expression and on the free exchange of ideas and information online so as to carry out their important work protecting human rights around the world. Many are based in countries with repressive press laws, where free access to the Internet is critical in protecting human rights and enabling NGOs to campaign for change.”
Ms Gallagher stressed that “The decision of the European Court today sets an important precedent for freedom of speech. The right to be forgotten is not universally recognised around the world. No state should be permitted to remove information from the internet with global effect. To do otherwise would trigger a ‘race to the bottom’: where the information available online to internet users everywhere would be determined by the state with the most repressive and draconian laws.”
The NGOs who intervened in the CJEU case were:
- Internet Freedom Foundation, India
- Software Freedom Law Center, India
- Collaboration on International ICT Policy for East and Southern Africa (“CIPESA”)
- Digital Rights Foundation, Pakistan
- Unwanted Witness, Uganda
- Paradigm Initiative, Nigeria
- Association for Progressive Communications, South Africa (with members from 77 countries)
- I-Freedom Uganda Network, Uganda
- Jonction, Senegal
- Media Rights Agenda, Nigeria
- Sierra Sustainable Technology
- The Institutio Beta for Internet and Democracy, Brazil
- The League of cyberactivists for democracy, Africtivistes, Senegal
- The Karisma Foundation, Colombia
- Global Voices, United States
- The Institute of Technology and Society of Rio, Brazil
- Red en Defensa de los Derechos Digitales, Mexico
The Center for Information Technology and Development (“CITAD”), Nigeria