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Europe Data Protection Digest | Notes from the IAPP Europe Managing Director, 27 Sept. 2019 Related reading: Tim Cook talks Apple's privacy stance, pushback to app-tracking framework




Greetings from Brussels!

It is official, you now have the "right to be forgotten" by Google — but only in the European Union. The Court of Justice of the European Union, the EU’s highest court, ruled Tuesday in what is a landmark decision, that Google is not required to apply the EU privacy right to its search engine domains outside Europe.

The decision itself has broad implications for the regulation of the internet, in that the privacy rule may not be enforced outside the EU "de facto." Furthermore, in another ruling, the court said the right to free expression and information must be balanced and weighed carefully before de-listing or de-referencing links related to certain categories of data.

The first of these two rulings stems from the case in which Google challenged a 100,000 euro fine imposed by the French regulator, the CNIL, which ordered the search group to de-reference search results across its global domains citing the RTBF principle in 2015. The CNIL had argued that for de-referencing to be effective, it must apply to all domains wherever they are. You can see why that may be a logical argument, taken the nature of the internet and data flows. Google took its fight to the French Council of State which, in turn, sought advice from the CJEU.

In what concerns search engines, EU citizens have had the right to request links to pages containing sensitive personal information about themselves be removed since 2014; this was the basis of a prior judgement by the CJEU. The new ruling updates that initial position, and importantly, it is the first major ruling clarifying the geographical scope of the RTBF principle.

This latest CJEU decision was, of course, hailed and welcomed by Google. Peter Fleischer, senior privacy counsel for the company, stated, "It's good to see that the court agreed with our arguments." Tuesday’s rulings were also supported by a host of other entities including Microsoft and the European Commission. According to the Financial Times, a spokesperson for the EC said that the case clarified that the RTBF applies within the EU and that search engine operators must take sufficiently effectively measures to ensure the protection of this right. The CJEU said that Google and other rival search engines will have to take measures, to “effectively prevent or, at the very least, seriously discourage” users in the EU from using other (non-EU) versions of its site to access removed content. Moreover, it was also interesting to note that in its judgment, the court stated that the RTBF is "not an absolute right."

Many companies, legislators, policymakers and regulators around the world will have been watching for the outcome of this case. Most notably, as the EU has taken a prominent global lead in the field of data protection legislation with the advent of the GDPR. Many may have viewed this as a litmus test of sorts as to the reach of EU law beyond its borders. For Google and other tech giants, this will be seen as a positive development, against the backdrop of increasing scrutiny from authorities around the world, particularly in what concerns their vast troves of data. More battles to come one should think.


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