Update (May 6, 2020): In 2016, the Wikimedia Foundation intervened in support of Google’s efforts to define the scope of the “right to be forgotten” in France. Faced with an order from the French data protection authority (“CNIL”) to delist information worldwide in response to a right to be forgotten request, Google challenged the order in court.
The Wikimedia Foundation believes that accurate, neutral information, supported by reputable sources, should be available to users worldwide. Global delisting of search results would be detrimental to free expression and access to knowledge online.
In 2017, the case was sent to the Court of Justice of the European Union (CJEU), to obtain their opinion on the proper geographic scope of delisting requests. In September 2019, the CJEU ruled that information should not be delisted globally (see more details below). Following this CJEU opinion, the case returned to French courts in order for the CJEU’s ruling to be applied to the original delisting order. On March 27, 2020, the Conseil d’Etat, the French Supreme Court, ruled that the CNIL cannot require that search results be delisted worldwide, but can only request removal within the EU. In response to the ruling, the CNIL has updated its guidance on the geographical scope of delisting.
We are pleased at this result, as globally delisting factual information would undoubtedly harm access to knowledge. However, we remain concerned about the increasing fragmentation of online knowledge along national borders, and we will continue to support Wikimedia communities in making accurate, relevant, well-sourced information available worldwide.
Today, the Court of Justice of the European Union (CJEU) has issued a landmark privacy ruling regarding Europeans’ right to request search engines delist search results about themselves. We are excited that the court has considered the effect of such delistings on other fundamental rights like freedom of expression in its decision, but concerned about the increasing reliance of both companies and now courts on geographical barriers to limit access to information on the internet. Before we address the court’s decision, however, let’s start with some background.
Over the past decade, the protection of privacy online has been a focus of European regulators, and Europe has seen a number of laws passed in an effort to protect citizens’ privacy. Often, these laws will lay out a principle or right, but the exact contours of that right end up being determined later by courts. The CJEU has just issued one such clarifying decision about a process called “delisting” or “de-referencing.” Delisting, sometimes referred to as the “right to be forgotten,” is a process through which a person can request that information about themselves be removed from search engine results returned for that person’s name. But how far does this right to delist extend?
This is the exact question tackled by the CJEU in Google v. CNIL. After delisting was recognized as a right in Europe, Google put in place processes for European citizens to request certain information about them that was available online be delisted. Through this process, Google would ensure that these results were delisted in its European domains such as Google.fr or Google.de, but did not apply the delisting outside of Europe. This meant that if you were searching from the United States, using Google.com, these results would still be available.
However, in 2015, the French data protection authority (“CNIL”) informed Google that delisting requests must be honored worldwide, not just in the European Union. When Google proposed an alternative solution, the CNIL appealed to France’s highest court, where the Wikimedia Foundation intervened to offer our perspective on delisting and access to knowledge. The court sent questions regarding the scope of delisting to the CJEU, and the Wikimedia Foundation again submitted observations on the matter. Now, almost a year after the arguments before the CJEU, the court has found that search engines are not required under EU law to carry out delisting requests across all versions of the search engine, only those which correspond with EU Member states. While not closing off the possibility of global delistings in certain circumstances, the court has essentially approved Google’s current processes for delisting, which uses a process called “geoblocking” to identify where a user is searching from based on their IP address.
We applaud this recognition that delisting should not extend beyond EU borders to the rest of the globe. In the Wikimedia Foundation’s brief to the court, we expressed our concern that the practice of delisting search results could harm both free expression and access to knowledge online. We are happy to see this argument acknowledged in the CJEU’s decision, which says, “The processing of personal data should be designed to serve mankind. The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality.”
Despite this, there are still some troubling aspects of this decision. Primarily, we remain concerned about the inequality in access to knowledge that results from any form of delisting orders. Wikipedia is founded on a premise of providing access to knowledge for all and Wikipedias are differentiated by language, not geography. What the CJEU’s decision means is that if someone requests the delisting of an article on Spanish Wikipedia, users in Mexico will still see this page in their search results, but users in Spain will not. Because these delisting decisions are often targeted toward only a small portion of the information contained on a page, this means that entire communities will lose the ability to easily search for information solely because of where they are located.
This highlights a larger trend of internet fragmentation, a growing concern for the interconnected global community that is the Wikimedia movement. As individual countries demonstrate an increased desire to regulate the internet, often in contradictory ways, this can lead to the internet looking very different depending on where you are located. Although the Wikimedia communities generally strive to be respectful of national laws, this will become increasingly difficult to navigate as countries place more granular requirements on online content. Volunteers come to Wikipedia to share their knowledge and learn from others, no matter where they are located.
Geoblocking, as envisioned here, is far superior to global delisting, which would essentially make it impossible to find certain information through a search engine. However, the type of geographical fragmentation it envisions will present challenges for movements that cross borders.
In the end, the internet is a global resource that connects people across the world every day to share their perspectives, creations, and knowledge. Let’s try to keep it that way.
Allison Davenport, Technology Law and Policy Fellow, Legal
Our thanks go to Claire Rameix-Séguin and SCP Baraduc-Duhamel- Rameix for their representation of the Wikimedia Foundation in this matter.