Victory for Google at European level on the scope of delisting

On 10 January 2019, Advocate General Maciej Szpunar provided his written opinion to the Court of Justice of the European Union (‘CJEU’) on the territorial scope of requests to delist search engine results under the 'right to be forgotten' principle, which (in the context of search engines at least) was established in May 2014 in the seminal ‘Google Spain’ case.

Mr Szpunar provided his opinion in the context of the long-running case of Google v CNIL (Case 507/17).  The background to the case is set out in our 2016 blog here.  A French national had made a successful delisting request to Google for the removal of specified search results retrieved on searches against his name.  The effect of this was that Google delisted the search results complained of on its European domains, such as Google.co.uk and Google.fr.  However, the search results could still be accessed in France with little difficulty, by using non-EU domains, most notably Google.com.

Accordingly, on 21 May 2015, the data protection regulator in France, the Commission Nationale de l’Informatique et des Libertés (‘CNIL’) issued an enforcement notice against Google requiring it to extend the scope of delisting to all of its domains so that it had a global effect.  Google failed to comply with this notice.

In March 2016, in an effort to placate CNIL, Google voluntarily extended its policy to include not only delisting against its EU domains (as above), but also using ‘geo-blocking’ technology to prevent the possibility of accessing the search results from an IP address located in the “state of residence” of the data subject, regardless of the actual Google domain used to carry out the searches.

Although the new policy implemented by Google did therefore extend the scope of delisting, it was not enough to satisfy the CNIL and, on 10 March 2016, the French regulator fined Google €100,000.  Google appealed this fine in the French courts and sought the annulment of CNIL’s decision.  The matter was referred to the CJEU for a preliminary ruling.  The wheels of justice turn slowly, however, and it is in the context of this referral that Mr Szpunar has now published his opinion.

In short, Mr Szpunar has sided with Google and advised unequivocally against imposing a worldwide delisting obligation on search engines.  He notes, perhaps understandably, that it could constitute a dangerous precedent and lead to “less democratic” regimes using the right to be forgotten principle as a tool for censorship.   Mr Szpunar has, however, suggested that the scope of delisting could be extended in certain circumstances (albeit what these could be somewhat unclear).

Specifically, Mr Szpunar recommends that henceforth, in respect of successful delisting applications, search engines should be required (1) to delist the search results complained of on all its European Union domains, and (2) to use geo-blocking techniques to delist search results against any IP address identified in all 28 Member States of the European Union.  This approach, he concludes, would provide delisting at a European Union (rather than national) level, which would result in an improved outcome for the data subject.  It is essentially consistent with the approach currently adopted by Google.

There is no guarantee that the CJEU will implement Mr Szpunar’s recommendations, although typically they do tend to follow the Advocate General's opinions.

Click here to see how Brett Wilson LLP can assist you seek the removal of outdated or inaccurate search engine results.