Samir’s Selection 08/06/2015 (p.m.)

  • By Carol A.F. Umhoefer, Partner, and Caroline Chancé, Associate, DLA Piper France

    tags: dataprotection privacy freeexpression ECJ Google internet search France law

    • countries such as the United States moved in the opposite direction. For example, the Second Circuit U.S. Court of Appeals held, in a January 2015 decision[8], that the beneficiary of a nolle prosequi[9] may not obtain the deletion of accurate news reports of her arrest, thus affirming the primacy of news organizations’ First Amendment right over individuals’ right to privacy.
    • When the public’s “right to know” outweighs the “right to be forgotten”
    • On January 21, 2015, the Toulouse Civil Court wrote that “it may not be claimed that anyone has an absolute right to the online de-indexing of his/her personal data” and refused to order Google Inc. to de-index from search results certain links to news articles, considering that (i) the links point users to information regarding the plaintiff’s dismissal and therefore his professional life, not his private life; (ii) such information is by nature public as the dismissal resulted in a court decision rendered publicly, subsequently published and receiving extensive media coverage due to the circumstances of the case, notably harassment by plaintiff, i.e., questionable professional behavior; and (iii) the events date from 2011. The Toulouse court found irrelevant the fact that a judicial proceeding is still pending with respect to the dismissal, and moreover stated that the pending proceeding does not prove that the articles are inaccurate, inadequate, irrelevant or excessive. Based on the foregoing, the Toulouse court ruled that Google Inc. demonstrated the public’s predominant interest in having access to the articles, justifying Google Inc.’s decision to refuse de-indexing.
    • The outcome would have certainly been different if, like in the September 16, 2014 decision rendered by the Paris Civil Court, the plaintiff could have relied on a judgment recognizing the defamatory nature of the linked information, and therefore its inaccuracy.
    • On March 23, 2015, the Paris Civil Court refused to order a French news website to remove or anonymize a December 2014 article announcing that charges for rape against the plaintiff had been dropped. The court considered that such information, including the name, age and profession of the plaintiff, was of public interest in that it concerned (i) the functioning of the judicial system and how serious crimes against individuals are handled; and (ii) a professional working with the public and in particular with children.
    • Although these two decisions were also rendered in injunctive proceedings and not on the merits, they are interesting examples of how Member State judges are applying the ECJ’s ruling — as well as likely the thirteen criteria established by the WP29[12] and those identified by the Advisory Council to Google[13] — in favor of the freedom of expression and the right to know.
    • the Court of Amsterdam in the Netherlands refused, in a decision dated September 19, 2014, to de-index links to articles linking the plaintiff to the crime for which his conviction to six years imprisonment was under appeal, stating that “the [Costeja] judgment does not intend to protect individuals against all negative communications on the Internet, but only against ‘being pursued’ for a long time by ‘irrelevant’, ‘excessive’ or ‘unnecessarily defamatory’ expressions[14].
    • Nonetheless, while the individual right to privacy is finding its boundaries in the form of the freedom of the press and the public’s right to know, the overall scope of the right to be forgotten is still evolving.
    • Towards a broader application of the Costeja case?
    • The Paris Civil Court decision of March 23, 2015 is especially interesting in that it is the first time a French court has applied the Costeja case directly to a news website, instead of the usual search engine.
    • not however the first case of its kind in Europe. For example, on September 25, 2014, the Liege Court of Appeals in Belgium ordered a newspaper to anonymize a 1994 article relating a DUI accident on the grounds that the driver had been rehabilitated[17].
    • One of the main aspects of the Costeja case is that it confirmed the application of data protection law to search engine operators
    • Judges have transposed this reasoning to news websites, which usually offer access to their archives via search functionalities, based on automatic processing, and therefore may be considered as “controllers” of the personal data contained in their articles.
    • This expansion of the scope of application of the right to be forgotten to news websites certainly contrasts with judges’ attention to the preservation of the freedom of expression, which becomes even more important in news context. Indeed, one of the main arguments in favor of the right to be forgotten was that de-indexed content still exists and is still accessible.
    • By directly going after news websites, this argument becomes meaningless. Judges therefore have an ever more important role to play in protecting freedom of the press as they balance individuals’ right to privacy. In this respect, a compromise approach would be to anonymize articles that infringe an individual’s privacy, as suggested by the Liege Court of Appeals[19].
    • Another recurrent issue regarding the right to be forgotten is its territorial scope. Indeed, whereas the WP29 considers that “in any case de-listing should also be effective on all relevant domains, including .com[20], the Advisory Council concludes that “removal from nationally directed versions of Google’s search services is the appropriate means to implement the ruling[21], arguing notably that adopting the position of the WP29 may contradict solutions espoused by courts in other parts of the world.
    • on May 21, 2015, the President of the French data protection authority (the “CNIL”), Mrs. Isabelle Falque-Pierrotin, put Google Inc. on notice to proceed within fifteen days with de-indexing requested by the CNIL following its receipt of complaints[22]; the CNIL’s request covers the entirety of the indexing services and thus all extensions of the search engine[23]. Specifically, the CNIL stated that “the service provided by the company via its search engine ‘Google search’ constitutes a single processing. Indeed, the different domain names that the company chose to implement to facilitate the local use of its service are only means of access to this processing. Thus, when [Google Inc.] launched its service in 1997, it was accessible only from the website ‘www.google.com’ and it has been extended to different domain names only over time”.
    • The CNIL also stated that individuals’ rights are not dependent on the configuration of the processing or the variety of access thereto.
  • tags: dataprotection privacy freeexpression ECJ Google internet search France

    • In a landmark ruling in May 2014, the Court of Justice of the European Union (CJEU) established a “right to be forgotten”, or more accurately, a “right to delist”, allowing Europeans to ask search engines to delist certain links from results they show based on searches for that person’s name.
    • It’s now just over a year later and we’ve evaluated and processed more than a quarter of a million requests to delist links to more than one million individual web pages. Whenever a request meets the criteria set by the Court for removal (which are that the information can be deemed inadequate, irrelevant, no longer relevant or excessive, and not in the public interest) we delist it from search results for that individual’s name from all European versions of Google Search.
    • While the right to be forgotten may now be the law in Europe, it is not the law globally. Moreover, there are innumerable examples around the world where content that is declared illegal under the laws of one country, would be deemed legal in others: Thailand criminalizes some speech that is critical of its King, Turkey criminalizes some speech that is critical of Ataturk, and Russia outlaws some speech that is deemed to be “gay propaganda.”
    • If the CNIL’s proposed approach were to be embraced as the standard for Internet regulation, we would find ourselves in a race to the bottom. In the end, the Internet would only be as free as the world’s least free place.
    • We believe that no one country should have the authority to control what content someone in a second country can access. We also believe this order is disproportionate and unnecessary, given that the overwhelming majority of French internet users—currently around 97%—access a European version of Google’s search engine like google.fr, rather than Google.com or any other version of Google.
    • As a matter of principle, therefore, we respectfully disagree with the CNIL’s assertion of global authority on this issue and we have asked the CNIL to withdraw its Formal Notice.

Posted from Diigo. The rest of my favorite links are here.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s