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The “right to be forgotten”, a relative right (by Army General (2S) Watin-Augouard, Founder of the FIC)

2020/04/09

The French Council of State, in a decision of 27 March 2020, followed the European Court of Justice’s decision of September 2019 by ruling in favour of Google against the CNIL.

The right to dereferencing –or “right to be forgotten”– is one of the consequences of the CJEU ruling of 13 May 2014, Google Spain and Google (C-131/12).  Though it did not remove the document that the plaintiff considers contrary to his privacy rights, it removed the links suggested by the search engine to the web pages displaying it. In accordance with Regulation 2016/679 (Article 17 of the GDPR), the right to dereferencing is referred to as the “right to erasure” or “right to be forgotten”.

Since then, the Court of Justice of the European Union (CJEU) has clarified the implementing rules. In judgement C-507/17 of 24 September 2019, it ruled that “where a search engine operator grants a request for de-referencing pursuant to those provisions, that operator is not required to carry out that de-referencing on all versions of its search engine, but on the versions of that search engine corresponding to all the Member States, using, where necessary, measures which, while meeting the legal requirements, effectively prevent or, at the very least, seriously discourage an internet user conducting a search from one of the Member States on the basis of a data subject’s name from gaining access, via the list of results displayed following that search, to the links which are the subject of that request.

A dispute was opposing Google and the CNIL concerning a 100,000-euros penalty imposed on the search engine for not agreeing to delete all the domain name extensions from its search engine. Following an action for nullification filed by Google, the Council of State, applying the aforementioned case law, ruled on 27 March that “under applicable law, no legislative provision provides that such dereferencing could exceed the scope of European Union law and apply outside the territory of the Member States of the European Union.” Therefore, it ruled in Google’s favour.

The case law on dereferencing enshrines the absence of extraterritoriality of European law. It does not prohibit the implementation of “geoblocking”, which prevents access to content from the territory of the Union. But there are circumvention methods…