– Welcome back to week five. In this and the next segment
we will focus on an issue which is highly debated
within the online community, the so called right to be forgotten or right to be de-indexed,
widely criticized as an attack against
freedom of expression. In this first segment I will present various court decisions
and policy development related to the right to be de-indexed. In the next segment I will
present various arguments from both side of the debate and we’ll conclude with
general conclusions. One of the most recent and impactful event in global free speech jurisprudence over the last few years is
the European Court of Justice decisions, Google Spain v Agencia Espanola de Proteccion of 2014. The so called decision on
the right to be forgotten which has been more accurately described as the right to be de-indexed. Since then courts around the world have rendered decisions on
the right to be forgotten, some of shit applied the law
of the 2014 Gonzales case at the open court of justice. So what do we mean by
the right to be forgotten and how did courts determine
that such a right exist? Let me first begin with that
particular case of 2014, the Gonzales case in Spain. In March 2010 Spanish citizen Mr. Gonzales wrote a complaint before the country’s data protection agency against
a newspaper, La Vanguardia, against Google Spain, and
against Google Incorporated in the United States. Gonzales wanted the
newspaper to remove or alter the record of his 1998 court proceeding so that the information
would no longer be available through internet search engine. He also requested Google incorporated or its subsidiary in Spain, Google Spain, to remove or conceal the data. Gonzales argued that the proceedings, the court proceedings of
1998, had been fully resolved for several years and
therefore they should no longer appear online. The Spanish agency for
data protection dismissed the complaint against the newspaper on the ground that the
publication was legally justified pursuant to a government order. It however upheld the
complaint against Google finding that internet search engines are also subject to data protection laws and must take necessary steps to protect personal information. On appeal the national high court of Spain stayed the proceedings and presented a number of questions to the
European court of justice concerning the applicability
of a European directive regarding protection of personal data to the internet search engine. And that’s how the case ended up with the European Court of Justice, and in its decision the ECJ established the following precedent. First of all that a search
engine collect, retrieve, organize, stores, and
disclosed personal information all of which amount to processing of data. Second, that A Search Engine is a control of the data it has possessed. Thirdly, that the processing
of such personal data is carried out “in the
context of the activities” of Google Spain, as opposed
to Google Incorporated. And, that’s where it becomes
important from our standpoint, I quote, if the data
appear to be inadequate, irrelevant, or no longer
relevant, or excessive in relations to the purpose for which they were processed, the
information and links concerned in the list of
result must be erased. And finally the court
ruled that the data subject may be capable of exercising
his right to be forgotten against a search engine, but
not against the publisher of a webpage, in that case the newspaper. The European Court of
Justice also acknowledged a different treatment in
case of data concerning an individual in the public eye justifying a preponderant interest of the public in adding access to the information when such a search is made. That ruling set the
reference and the benchmark for the so called right to be forgotten, that is the right to
have one’s data erased from a web search through Google
or similar search engines. That ruling has been referenced
by courts around the world, in Switzerland, Canada,
Israel, the United Kingdom, Mexico, the Netherland,
Argentina, Japan, to name a few, you can see on your
screen the world journey undertaken by this particular decision, a pretty exceptional travel actually. In one year it has been
referenced by some 20 courts around the world, a very
exceptional situation. But let’s return to the decision. A few months later after
that first decision in November 2014 an independent
European advisory body on data protection and
privacy published guidelines in an effort to clarify the
reach of the Gonzales decision. Two key points about those
guidelines may be highlighted. First, the European body offered immunity for the internal search engines operated by news organization. And that’s very much
linked to the decisions, if you recall the
newspaper was not included in the ECJ decision, only Google. The European body also targeted Google in the same way as the
European court had done by impact of their massive reach citing the intrusive, I
quote, of perversive, I quote, effect of giants such as Google. Second, the European Advisory Body posited the de-indexing search result
only from national domain in this case Google.es or Google.Spain, as opposed to the global
domains Google.com were simply not enough. In practice this means
that to be effective de-listing, de-indexing, forgetting, should be effective on
all relevant domains including dot com, I quoted here from that advisory body. The European court
ruling and the follow up European body advice have
generated index analysis and intense debate from
internet commentators and free speech activists
across the world. There are two issues in particular which have been and are still debated. First one concerns the soundness
of a de-listing process and how it may impact on
the right to information. Basically is there such a right as the right to be forgotten
and how does it conflict with the right to access information? And second what is the reach of a decision when it is made? Is it just national or can it be global? What is the implication of
the extractive retotal reach of de-listing decisions? The process is not over, a
few months later in May 2015 the French data protection
agency, the CNIL, C, N, I, L, from the French acronym, citing the Gonzales decision and the European court of
the European agency of device ordered Google to de-list
the relevant links on all domain names world wide, that is everything on Google.com and not just a nation specific domain, in this case it will be Google.fr. The CNIL gave Google formal notice that it must carry out the
requested worldwide de-listing within 15 days. That was not the first time a French court had ordered for such a global de-listing, in September 2014 a Parisian court had already ordered Google
to de-list link globally on the ground that and
I quote, Google does not make it impossible to connect
from the French territory using the other country endings
of the Google search engines meaning when I travel to
France, my home country, I can still access information
by using Google.com rather than Google.fr
which is a very good thing. In response to the CNIL
decisions regarding the global de-listing Google announced that it will use geolocation
signals to restrict access to the de-listed URL on
all Google search domain when accessed from the
country of the person requesting the removal,
and that it will apply the change retrospectively
to all de-listing that they have already done and
of the European court ruling so here Google was trying
to find a technical response to the French Data
Protection Agency request, which on the face of
it sounded reasonable, but still, the French Data
Agency was not satisfied with Google proposal and
it issued it’s a fine on the following month. So in May 2016 Google announced
it will file an appeal against the French decision
and the case is ongoing. The situation I am describing
regarding the right to be de-listed is not
just French American or French Google issue
although it’s got to be seen as largely dominating the agenda which is actually fair enough,
but some of the arguments on the right to be forgotten
were also tested in Canada in a case decided in June 2015. And the court there kind of
agreed with the French positions even though they are not referencing it, they ended up with the same conclusion. The court of appeals of British Columbia in Equustek Solutions v. Google upheld the previous lower court
decision, although in Google to de-index certain website selling goods that where the subject
of intellectual property and unlawful appropriation
of trade secret claims. Google had argued that
the extraterritorial reach of the injunction was inappropriate and a violation of some various principle, and that the injunction
should not have been granted because of its effect
on freedom of speech. To count it in court, E Court, the French, and European view that an
injunction or de-listing limited only to the national jurisdiction would be ineffective, and I’m quoting here from the Canadian court decision. The plaintiff have establish, in my view, that an order limited to the google.ca, Canadian Google, search
site would not be effective. I am satisfied that
there was a basis, here, for giving the injunction
worldwide effect. And of course that was a
judge from that Canadian case. So in conclusion for this segment we’ve had several court
decisions backed by at least a regional advisory decisions all of which use very similar language regarding the right to be de-listed and regarding the
extraterritorial dimension of the implementation of that trait. I will turn in the
segment on the arguments for and against such a
right, but let me end here with just one comment. It is a fact that we can notice some kind of judicial
convergence across borders and an emerging and interactive
global jurisprudence as far as de-listing or the right to be forgotten is concerned. Thank you very much.