In the wake of the original Right to be Forgotten (RTBF) decision, citizens had the opportunity to apply to Google for removal from their search index of information that was inadequate, irrelevant, excessive and/or not in the public interest. Google says that since the decision it has received more than 250,000 requests, and that they have concurred with the request and acted upon it in 41.6% of the cases.
In France, even where Google accepted/approved the request for delisting, it implemented that only on specific geographical extensions of the search engine – primarily .fr (France) although in some cases other European extensions were included. This strategy resulted in a duality where information that had been excluded from some search engine results was still available via Google.com and other geographic extensions. Becoming aware of this, the President of CNIL (France’s data protection organization) formally gave notice to Google that it must delist information on all of its search engine domains. In July 2015 Google filed an appeal of the order, citing the critiques that have become all-too-familiar – claiming that to do so would amount to censorship, as well as damaging the public’s right to information.
This week, on 21 September 2015, the President of CNIL rejec ted Google’s appeal for a number of reasons:
In order to be meaningful and consistent with the right as recognized, a delisting must be implemented on all extensions. It is too easy to circumvent a RTBF that applies only on some extensions, which is inconsistent with the RTBF and creates a troubling situation where informational self-determination is a variable right;
Rejecting the conflation of RTBF with information deletion, the President emphasized that delisting does NOT delete information from the internet. Even while removed from search listings, the information remains directly accessible on the source website.
The presumption that the public interest is inherently damaged fails to acknowledge that the public interest is considered in the determination of whether to grant a particular request. RTBF is not an absolute right – it requires a balancing of the interest of the individual against the public’s right to information; and
This is not a case where France is attempting to impose French law universally – rather, CNIL “simply requests full observance of European legislation by non European players offering their services in Europe.”
With the refusal of its (informal) appeal, Google is now required to comply with the original CNIL order. Failure to do so will result in fines that begin in the $300,000 range but could rise as high as 2-5% of Google’s global operating costs.