Last October, the Wikimedia Foundation filed a petition with the French Supreme Court opposing the worldwide application of the right to be forgotten or right to erasure. This legal doctrine requires search engines to remove (or “delist”) certain information from search results when requested appropriately by European citizens.
In May 2015, the French data protection authority (the CNIL) ordered Google to expand the geographic reach of delistings, and remove the requested information from all of its domains, for users throughout the world, regardless of whether the governing law in their country was similar or distinct. When Google’s offer of a compromise was rejected, it chose not to comply with the order, and challenged it before the Conseil d’État, the French Supreme Court. In our filing, the Wikimedia Foundation argued that delisting, if determined to be appropriate under a given jurisdiction’s laws, should not be expanded to affect search results worldwide. We explained the impact that search engine delistings have on the Wikimedia projects, in making it more difficult for users around the world to find accurate, well-sourced information.
We now provide a brief update on the progress of our petition and Google’s appeal. The French Supreme Court has turned for guidance to the European Court of Justice (ECJ), the highest court in the European Union (EU) responsible for interpreting EU law. In the EU, national courts may refer questions to the ECJ for a preliminary ruling to ensure that they are uniformly interpreting EU law. In a ruling (in French) issued July 19, 2017, the Conseil d’État accepted our petition to intervene, among others, and asked the ECJ to answer the following questions. First, does the right to delist mean that search engines must deindex links on all domains, or is the scope of delisting limited to the European Union? Further, if the scope is limited to the EU, should the delisting take place only on the national domain of the requester, or across all EU domains? Finally, should geoblocking be used to ensure searchers in the same country as the requester do not receive the delisted results? After the ECJ rules on these questions, the case will return to the Conseil d’État.
As we mentioned in an earlier blog post, a large proportion of Wikimedia project traffic originates from search engines. The delisting of links in search results makes it difficult for people to find and access neutral, reliable information on Wikipedia and the other Wikimedia projects. When we receive notice that a project page has been removed from search engine results due to a delisting request, we publicly post these notices for the Wikimedia community’s reference. The global extension of search engine delistings sets a dangerous precedent for how information is shared, documented, and disseminated around the world, reaching far beyond the the Wikimedia projects. Worldwide removal orders are recent, and troubling, trend; on July 20, we blogged about a Canadian Supreme Court decision that similarly calls for Google to remove search results across borders.
No single country or region should be able to control what information the entire world may access. If upheld, the CNIL’s order may encourage countries with weak protections for human rights to require the worldwide removal of important information regarding authorities’ abuses of power, dissenting political opinions, or other crucial topics. The removal of content, particularly in such contexts, fundamentally undermines the Wikimedia vision of a world in which every single human being can freely share in the sum of human knowledge. We hope that the ECJ will conclude that search engine delistings ordered by a particular court should not extend across the globe. We will continue to provide you with updates as the case proceeds.
Aeryn Palmer, Legal Counsel
* Special thanks to Claire Rameix-Séguin and François Gilbert of SCP Baraduc-Duhamel-Rameix for their representation of the Wikimedia Foundation in this case, to Jacob Rogers, Stephen LaPorte, and Jan Gerlach of the Wikimedia Foundation, and to Diana Lee for assistance in preparing this blog post.