Right to Be Forgotten Case Could Affect Borderless Internet

In early 2019, the European Union’s highest court will likely rule on a dispute between Google and French regulators on the right to be forgotten. In 2015, French regulators ordered Google to respect this right on all its sites worldwide — in other words, not just google.fr but also google.com. Google’s argument (and that of many other tech companies) is that this “right” not only menaces free speech but is an onus for private companies, encroaches on sovereignty and creates a range of other risks.

Bloomberg opines that, “the right is ill-conceived to begin with … [since] censoring lawful and factual information is dubious on principle and flawed as a method of protecting privacy.”

It is also a huge burden on companies that must handle such requests; “since 2014, Google has had to adjudicate more than 727,000 delisting requests, spanning some 2.8 million web addresses.” Each request is evaluated by human intermediates; a single request can take days to process, and “Google has no obvious aptitude for making such judgment calls.”

France, Germany and the U.K. “generate 51 percent of all delisting requests, for instance, while Greeks barely assert the right all,” and enforcing the right in the U.S. “could well be unconstitutional.” Unknown is if and how Google would “respect similar demands from Turkey … or enforce Thailand’s lèse-majesté law.”

“Confronting such a complicated and nuanced challenge is a matter for legislatures, not private companies,” concludes Bloomberg, which notes that, in practice, “countries with the most severe restrictions would effectively determine policy worldwide.”

Such a global law would accomplish nothing “if the information still turns up on searches conducted through a VPN or by manually using overseas versions of Google,” said France’s regulator, although “fewer than 1 percent of searches in France actually evade Google’s measures in this way.”

Bloomberg notes that the case is “magnifying a worsening global tension … [whereby] a growing number of jurisdictions are attempting to exploit tech companies to export their own laws and values.” For example, “courts in Austria and Canada are trying to force social-media companies to take down objectionable information globally, foreign legal opinion notwithstanding.”

“No good can come of this trend,” says Bloomberg. “The Internet works so splendidly precisely because it’s borderless; commandeering tech platforms to enforce national priorities will jeopardize that openness for everyone … requiring them to adhere to one jurisdiction’s preferences worldwide would be legally dubious, conceptually flawed, and loaded with unintended consequences.”