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Google To EU Regulators: No One Country Should Censor The Web Globally. Poll Finds Canadians Support 'Right To Be Forgotten'

For those watching privacy legislation in Europe, MediaPost reported:

"... Maciej Szpunar, an advisor to the highest court in the EU, sided with Google in the fight, arguing that the right to be forgotten should only be enforceable in Europe -- not the entire world. The opinion is non-binding, but seen as likely to be followed."

For those unfamiliar, in the European Union (EU) the right to be forgotten:

"... was created in 2014, when EU judges ruled that Google (and other search engines) must remove links to embarrassing information about Europeans at their request... The right to be forgotten doesn't exist in the United States... Google interpreted the EU's ruling as requiring removal of links to material in search engines designed for European countries but not from its worldwide search results... In 2015, French regulators rejected Google's position and ordered the company to remove material from all of its results pages. Google then asked Europe's highest court to reject that view. The company argues that no one country should be able to censor the web internationally."

No one corporation should be able to censor the web globally, either. Meanwhile, Radio Canada International reported:

"A new poll shows a slim majority of Canadians agree with the concept known as the “right to be forgotten online.” This means the right to have outdated, inaccurate, or no longer relevant information about yourself removed from search engine results. The poll by the Angus Reid Institute found 51 percent of Canadians agree that people should have the right to be forgotten..."

Consumers should have control over their information. If that control is limited to only the country of their residence, then the global nature of the internet means that control is very limited -- and probably irrelevant. What are your opinions?


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Chanson de Roland

It is axiomatic to most legal systems that a nation’s laws have no greater application and effect than the extent of that nation’s territory. However, there are extensions to territorial jurisdiction that can and do routinely reach beyond the extent of a jurisdiction’s territory. For example, when a foreign person, natural of juridical, transacts business or performs acts in a territory, our federal doctrines of jurisdiction permit a state or the federal government’s jurisdiction to extend beyond the limits of territory to reach the person who is outside the territory of a state or the United States, who has done business or performed some legally cognizable act inside of the state or federal government’s territory. Thus, the SEC’s laws apply to a foreign firm that sells stocks or does an IPO in the United States.

Also, the effects doctrine reaches a extra-territorial person, who does some act which has an effect inside a jurisdiction’s territory. For example, I perform blasting in my foreign territory to clear an obstruction to construction, but in so doing, I send dangerous projectiles hurling into the jurisdiction’s territory. Or I spread calumnies in my foreign territory using a facility which has extraterritorial reach, such as the internet, that ruin the reputation of a person in the jurisdiction’s territory. In either of these examples, the blaster in the first or the defamer in the second could, depending on laws, treaties, the doctrine of comity, and other circumstances be held civilly or criminally liable for acts in a foreign territory that have effects in the jurisdiction’s territory.

These concepts also exist in legal systems other than the common law, such as European code-based legal systems and can be applied here to the Google case to both give effect to the EU’s member states just, reasonable, and proper desire to give effect to EU laws to the extent of their territories and over their respective citizens, while still cabining EU law inside the EU so that the EU does not attempt to become the world’s rule maker for the internet.

To apply the concepts of extraterritorial jurisdiction here, we begin by noting that Google both does business in the EU and that its search service definitely has effects in the EU’s member states. Yet the problem here is that the internet and its effects are difficult, if not impossible, to cabin inside territorial borders. But what extracts us from that difficulty is that the acts and citizenship of the complaining party are all inside an EU member state. That is, Google was only being ordered to comply with the right to be forgotten for the acts of a citizen of an EU member state, which occurred in an EU member state, and not either the acts of a Non-EU citizen or the acts of a citizen of an EU member state which occurred outside of the territory of an EU member state. Therefore, I conclude that the advisor was wrong. Instead, he should have opined that since the citizen was an EU citizen and since the acts to be expunged occurred inside of the territory of an EU member state, the EU’s right to be forgotten applies to protect the EU complainant and to require Google to expunge that EU member state’s citizen’s complained of acts, which are subject to the right to be forgotten, rom all of its records, computers, search engines and devices everywhere, except to the extent necessary to comply with the EU’s right to be forgotten.

It is for the EU’s member states to decide which of its citizens’ acts the internet’s search engines memorializes, at least to the extent that its right to be forgotten doesn’t go beyond the acts of a citizen of an EU member state which occurred on the territory of an EU member state and doesn’t conflict with another state’s laws on its territory, which alone would govern what rules of law govern the internet in its territory. It sufficiently cabins the EU’s laws within its territory that they have no greater effect than for its citizens in the territory of its members states. And if I were a Justice of the ECJ, I would so hold to overrule the adviser and find against Google.

Chanson de Roland

P.S. Alphabet/Google does not have a First Amendment right to speak. To the extent that Google or anyone has a First Amendment right regarding speech, it is only the right to prevent the government from interfering with his/its right to speak based on the constent of that speech. That right only applies to U.S. persons and citizens of the several states and is binding only on the federal and state governments. The right not to be molested or interfered with the right to speak by a person, natural or juridical, is found in the law as your right to be free from interference by others to do anything that you have a legal right to do.

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