‘Right to be forgotten’ or freedom of expression: the decision of the European Court of Justice

In 2014, the Court of Justice of the European Union (CJEU) established a

right to dereferencing

, also called

right to be forgotten

or

right to erasure

. Since then, a European Union citizen has the right to ask search engines to remove the link to pages about him from their search results, following a query about his name. The Court first delimits the geographical scope of this right to Europe.

The case involved the National Commission for Informatics and Freedoms (CNIL) and a search engine operator. The latter had executed the request to de-index 4 people but had refused to follow up on a demand from the CNIL to apply the de-indexing requested on all domain name extensions of its search engine.

The search engine operator claimed that the right to be forgotten beyond Europe's borders would have created risks for freedom of expression, particularly in some authoritarian countries. As a result, he removed only the links to the results displayed from the European versions of the search engine, which resulted in a fine of €100,000 from the CNIL.

The Court has ruled. There is no obligation to de-reference on all versions of its search engine. The operator is only required to de-reference on the versions of its search engine corresponding to all Member States. It must also ensure the effectiveness of protection by taking measures to prevent or seriously discourage Internet users from accessing the links in dispute.

However, the European judges point out that, if European legislation does not require a de-referencing

global

It does not prohibit it either. A Member State remains competent to decide between, on the one hand, the right to privacy and the protection of personal data and, on the other hand, the right to freedom of information.

Indictment In the second case, the search engine operator refused to de-reference several links, including convictions for pedophilia offenses, the killing of a politician and a satirical photomontage of a politician. The Court has clarified that the right to the protection of personal data is not an absolute right. It must be balanced against other fundamental rights, such as the fundamental right of internet users to freedom of information, and in compliance with the principle of proportionality.

Thus, the operator of a search engine is required to verify whether the inclusion of the link to the web page at issue is necessary for the exercise of the right to freedom of expression.

On the subject of the right to be forgotten, a fair balance must therefore be struck between the right to respect for private life and the right to freedom of information for the public.