Google is not required to carry out worldwide de-referencing of its search engine when "the right to be forgotten" is exercised07-11-2019 Print this page
Google is not required to carry out worldwide de-referencing on all versions of its search engine – by a request or order for de-referencing: in a globalised world may access outside the Union likely have effects within the Union itself, numerous third States do not recognize the right to de-referencing, the right of the protection of personal data is not an absolute right and the balance between the right to privacy and the freedom of information is likely to vary significantly, the legislature has chosen to confer a scope on the protection that won’t enshrined beyond the territory of the Member States. Google is required to carry out de-referencing on all EU-versions: the de-referencing should be accompanied with measures that have the effect of preventing or, at the very least, seriously discouraging internet users in the Member States from gaining access to the links in question with a help from a non-EU-version using a search conducted on the basis of that data subject’s name.
The French conseil d'État has asked the Court of Justice for a preliminary ruling regarding the question of whether a search engine operator, when granting a request for de-referencing links, is obliged to deploy the de-referencing to all of the domain names used by its search engine, or just on the versions of the search engine corresponding to the Member States or only on the version of that search engine corresponding to the Member State or residence of the person benefiting from the de-referencing.
The CJEU considers that the access of internet users outside the Union is likely to have immediate and substantial effects in the Union itself and that on such considerations it can be justified for the EU legislature to lay down the obligation, for a search engine operator, to carry out, when granting a request for de-referencing made by such a person, a de-referencing on all versions of its search engine.
The CJEU also considers that numerous third States do not recognise the right to de-referencing or have a different approach to that right. Moreover, 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. According to the CJEU it is in no way apparant from the wording of the Regulation and Directive that the EU legislature would have chosen to confer a scope on the rights enshrined in those provisions which would go beyond the territory of the Member States.
According to the CJEU it follows that, currently, there is no obligation under EU law, for a search engine operator who grants a request for de-referencing made by a data subject following an injunction from a supervisory or judicial authority of a Member State, to carry out such a de-referencing on all the versions of its search engine.
There is on the other hand an obligation under EU law for the search engine operator to de-reference the links on the versions of the search engine corresponding to Member States and to take sufficiently effective measures to ensure the effective protection of the data subject’s fundamental rights. Those measures must themselves meet all the legal requirements and have the effect of preventing or, at the very least, seriously discouraging internet users in the Member States from gaining access to the links in question using a search conducted on the basis of that data subject’s name. The CJEU determined that the referring court has to ascertain wheter the measures adopted or proposed meet those requirements.
Lastly, it should be emphasised that, while EU law does not currently require that the de-referencing granted concern all versions of the search engine in question, it also does not prohibit such a practice. Accordingly, a supervisory or judicial authority of a Member State remains competent to order, where appropriate, the operator of the search engine to carry out a de-referencing concerning all versions of that search engine.