Since a European high court ruled more than a year ago that people could compel search engines to remove links to content about them, the debate over the “right to be forgotten” has been cast as a battle between various notions of privacy and Silicon Valley.
But this week, numerous US media organizations joined the debate, saying the way French regulators have interpreted that right will burden publishers and news consumers on this side of the Atlantic.
On Monday, the Reporters Committee for Freedom of the Press urged French regulators to rescind an order that the US organization says is on a “collision course with the protections for free expression and the right to receive information around the globe, including in the United States under the First Amendment.”
The Reporters Committee, along with 29 other US media organizations—from the Associated Press to BuzzFeed to newspaper chains like Advance and Tribune and industry groups like the Newspaper Association of America—sent a letter to France’s data-protection authority, the Commission Nationale de l’Informatique et des Libertés (CNIL), objecting to one of its May 2015 orders. CNIL instructed Google that when it delists links from search results, upon request under the “right to be forgotten,” Google must delist the links from all of its domains worldwide—even its primary domain, google.com.
In the letter, the Reporters Committee said that CNIL’s order amounted to “unacceptable interference with what people in other nations can post and read on the Internet,” adding: “As members of the news media, we depend on an open Internet to reach and inform readers in all the countries of the world.”
Bruce Brown, executive director of the Reporters Committee, told CJR that the letter was the US news media’s first major collective step into the European “right to be forgotten” debate.
“This seemed like a good opportunity to stake out a position,” he said. “We converged on the extraterritoriality issue, the idea that France can set the standard worldwide for online speech. It’s important to recognize that the development of legal regimes abroad can impact our press freedoms at home, in a very local way.”
The letter was sent as CNIL considers whether to appoint a special rapporteur to recommend sanctions for the US-based search engine, which continues to delist links only from European domains. Google has said that practice reflects its understanding of the “right to be forgotten” as it was articulated in 2014 by the EU’s highest court. Google believes CNIL misinterpreted the scope of that right when it ordered the company to delist links from all of its domains.
“We hope [CNIL] finds the letter useful while it charts the path forward,” Brown said. “We also hope [CNIL] reconsiders its May order, because we want to see the Internet as free and open as possible The order interferes with that.”
Specifically, the Reporters Committee outlined four major concerns in its letter:
- Extending delisting to nations and domains outside of the EU has the effect of limiting access to information beyond France and Europe, well beyond the EU’s jurisdiction. It also “sends a cue to repressive and autocratic regimes around the world to impose their own local restraints on free expression extraterritorially.”
- It is “deeply troubling” that CNIL used the “accessibility” of online speech to justify its May order and long-arm jurisdiction. That standard is “unworkable and impermissibly broad,” because “it contains no limiting principle: every website is in theory accessible from every computer in every country that is connected to the web.”
- French guidelines issued in 2014 advise search engines not to notify “publishers when they receive requests to remove links to their content.” That’s problematic because forbidding search engines “from communicating with news organizations about truthful and lawful information that the media has every right to report on, and the public has every right to receive, is a restraint on speech that runs contrary to free expression guarantees in European and international law.”
- In the name of privacy, CNIL’s order failed to account for freedom of expression and the right to receive information, both “equally fundamental under EU and international law.” The result is “French control over what non-EU users can access online,” meaning that people all around the world will “only have the Internet that CNIL will allow them to have.”
Brown said he has not received a response from CNIL, but since the agency just got the letter, a response could take awhile. Brown also said the Google case is illustrative of bigger trends in European data protection—and that the Reporters Committee will remain involved in these issues and will be watchful for similar cases in the future.
“There’s no doubt this is new for us,” he said. “It was the first time the Reporters Committee translated a letter to a foreign language for the purpose of sending it to a regulator, but surely it won’t be the last.”Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.