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Why Google’s Privacy Fight in France is Significant for Everyone

May 19, 2016

Facing pressure to apply European privacy laws to its services around the world, Google (goog) is taking its case to the French supreme court.

This is all about the so-called right to be forgotten (more accurately the "right to be delisted"), which applies across the European Union. Back in 2014, the bloc's highest court established that search engines must respect people's right to privacy—if asked and with some exceptions—by removing search results that link to out-of-date or inaccurate information about them.

France's privacy regulator, CNIL, is the de facto leader of the EU's data protection regulators, and it took charge of making sure that Google fully respected the ruling.

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In the middle of last year, CNIL told Google that it couldn't stop at removing listings from its European domains, such as google.fr and google.de. Instead, the watchdog said, it must remove the offending results from all its domains around the world, including google.com.

Google fought for a while but then gave in, saying it would remove listings from all its domains—but only for users that its systems identified as being in the EU. CNIL said that wasn't good enough, and in March, it fined the search giant.

This is the point at which Google seems to have truly snapped. In a blog post announcing its appeal to the French supreme administrative court, the Conseil d’Etat, Google general counsel Kent Walker wrote:

As a matter of both law and principle, we disagree with this demand. We comply with the laws of the countries in which we operate. But if French law applies globally, how long will it be until other countries—perhaps less open and democratic—start demanding that their laws regulating information likewise have global reach? This order could lead to a global race to the bottom, harming access to information that is perfectly lawful to view in one’s own country. For example, this could prevent French citizens from seeing content that is perfectly legal in France. This is not just a hypothetical concern. We have received demands from governments to remove content globally on various grounds—and we have resisted, even if that has sometimes led to the blocking of our services.

Walker was reiterating several points that Google has made before, but the difference is that this time, the Mountain View, Calif.-based corporation has exhausted all the technical means it could possibly take to enforce the EU's "right to be delisted," short of actually applying EU law across the world.

CNIL's argument has subtly morphed over time. Originally, it was demanding that delistings be carried out on all Google's domains in order to make sure a French user couldn't circumvent the system by visiting google.com rather than google.fr. In March, it still maintained that people could trick the system by hiding their location, but it more prominently argued that "personal or professional contacts living outside Europe can still access the delisted search result linking to content that may infringe the privacy of the person concerned."

In short, CNIL really is now trying to apply EU law around the world, in order to make sure it is applied in as watertight a fashion as possible. As it wrote in March:

The right to be delisted is derived from the right to privacy, which is a universally recognized fundamental right laid down in international human rights law. Only delisting on all of the search engine's extensions, regardless of the extension used or the geographic origin of the person performing the search, can effectively uphold this right.

It's true that the right to privacy is enshrined in the Universal Declaration of Human Rights (in Article 12), but so is freedom of expression (Article 19).

The thing with rights is that they usually have to be balanced, and different countries and regions don't always prioritize the same rights. In the U.S., freedom of expression generally trumps the right to privacy, while in the EU, the opposite generally holds true. These two approaches cannot apply in the same place at the same time—if CNIL gets its way, it will effectively be trampling on the rights of people in other parts of the world.

For more on the right to be forgotten, watch our video.

The "right to be delisted" affair is emblematic of the Internet's central conundrum in that it is a borderless system that will sometimes force different legal systems up against one another. This is a problem that needs to be solved, probably using treaties and other international agreements. But simply having one country's legal norms ride roughshod over everyone else's is no way to do things.

As it happens, the "right to be delisted" provides the perfect cautionary tale. After the EU's momentous 2014 ruling, Russia passed a near-copy—except without the public-interest exemptions contained in the EU version. Do we really want a Russian law, which can protect gangsters and corrupt politicians from unwelcome exposure, applied around the world?

It remains to be seen whether Google will sway the French supreme court with this argument, but in terms of the future of the Internet, it's a good and timely argument to be making.

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