Europe Ponders Privacy's Scope -- WSJ
July 20 2017 - 3:02AM
Dow Jones News
EU court to decide if 'right to be forgotten' extends beyond
bloc; Google calls for limits
By Nick Kostov and Sam Schechner
This article is being republished as part of our daily
reproduction of WSJ.com articles that also appeared in the U.S.
print edition of The Wall Street Journal (July 20, 2017).
PARIS -- The European Union's top court is set to decide whether
the bloc's "right to be forgotten" policy stretches beyond Europe's
borders, a test of how far national laws can -- or should --
stretch when regulating cyberspace.
The case stems from France, where the highest administrative
court on Wednesday asked the EU's Court of Justice to weigh in on a
dispute between Alphabet Inc.'s Google and France's privacy
regulator over how broadly to apply the right, which allows EU
residents to ask search engines to remove some links from searches
for their own names.
At issue: Can France force Google to apply it not just to
searches in Europe, but anywhere in the world?
The case will set a precedent for how far EU regulators can go
in enforcing the bloc's strict new privacy law. It will also help
define Europe's position on clashes between governments over how to
regulate everything that happens on the internet -- from political
debate to online commerce.
France's regulator says enforcement of some fundamental rights
-- like personal privacy -- is too easily circumvented on the
borderless internet, and so must be implemented everywhere. Google
argues that allowing any one country to apply its rules globally
risks upsetting international law and, when it comes to content,
creates a global censorship race among autocrats.
"Each country should be able to balance freedom of expression
and privacy in the way that it chooses, not in the way that another
country chooses," said Peter Fleischer, Google's global privacy
counsel. "We look forward to making our case at the European Court
of Justice."
The case exposes a deep trans-Atlantic divide over the role of
regulations in everything from antitrust to personal privacy. In
the U.S., the First Amendment forces officials to give broad leeway
for free expression, even if objectionable. That makes it difficult
for individuals to remove personal information gathered and
published online by a slew of companies.
By contrast, Europe's experience from World War II has led to
laws banning Holocaust denial and hate speech. More recent
experiences with East Germany's police state have turned privacy
into a fundamental right that can at times trump free
expression.
The May 2014 decision granting the right to be forgotten
reflects that division. That case concerned a Spaniard, Mario
Costeja Gonzalez, who complained to privacy regulators about Google
search links to a 1998 announcement in a Spanish newspaper
mentioning debts that he had since resolved. The court said Google
should remove the links from searches for Mr. Costeja's name on
privacy grounds.
The decision created a right for any EU resident to ask search
engines to remove links from searches for their own names, if the
information is old, irrelevant or infringes on their privacy.
Google and other search engines vet requests, weighing privacy
rights against the public interest in having that information tied
to the person's name.
After the decision, Google quickly applied the right in Europe,
removing about 590,000 links from some searches in the last three
years, according to its transparency report. But the company
resisted applying those removals to its non-European sites, like
Google.com. Under pressure, Google agreed to do so only when those
searches were done from within the European country where the
removal request originated.
But in 2015, France's privacy regulator ordered Google to go
further: applying its right-to-be-forgotten removals to all of its
websites wherever they are accessed, arguing that it is simple for
internet users to mask their location using proxy services. After
the regulator fined Google EUR100,000 ($115,000) last year for
violating the order, Google appealed to France's Conseil d'Etat,
the highest administrative court.
Google's lawyer, Patrice Spinosi, argued to the Conseil d'Etat
that Google's current system for applying the right to be forgotten
in Europe "is perfectly effective unless you want to be a
fraudster," saying the court should toss out France's privacy order
on more fundamental grounds, without even asking the EU court.
"This order would give global effect to a national authority,
with a negative impact on free expression," Mr. Spinosi told the
court. "The danger is that tomorrow, it won't be the French
authorities making these decisions, but authorities in other
countries that are less democratic than France."
On Wednesday, however, the Conseil d'Etat said "the scope of the
right to be forgotten poses several serious difficulties in the
interpretation of European Union law."
Write to Nick Kostov at Nick.Kostov@wsj.com and Sam Schechner at
sam.schechner@wsj.com
(END) Dow Jones Newswires
July 20, 2017 02:47 ET (06:47 GMT)
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