Phew: EU Court Of Justice Says Right To Be Forgotten Is Not A Global Censorship Tool (Just An EU One)

from the dodged-a-bullet dept

Over the past few years, an important legal battle has been playing out concerning the jurisdictional reach of the EU’s terrible “right to be forgotten” laws. France decided that Google needed to not just block such content within the EU, but globally. In response, Google pointed out that French regulators shouldn’t be able to censor the global internet. The question made it to the EU Court of Justice (CJEU) last year, and the ruling has finally come down saying that Google was right after all. The right to be forgotten may exist in the EU, but that does not mean it can be applied globally.

For once, the CJEU actually seemed to recognize that the RTBF and freedom of expression are often in conflict — and that different countries may want to set the “balance” (if you can call it that) between the two in different places:

… the balance between the right to privacy and the protection of personal data, on the one hand, and the freedom of information of internet users, on the other, is likely to vary significantly around the world.

Indeed, the ruling notes that data protection is not an “absolute right.”

The processing of personal data should be designed to serve mankind. The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality.

Of course, I have a bit of trouble with the idea of things that are considered fundamental rights — such as freedom of expression — being “balanced” against things that are not fundamental rights, like “protection of personal data.” It seems like the fundamental right should always win out in such circumstances. In the US, for the most part, we’ve decided that the 1st Amendment doesn’t have a “balancing” test.

Still, it’s good to see the CJEU at least put some limits on the right to be forgotten and the ability of it to be used elsewhere against perfectly legal, truthful speech. It still sucks for people in the EU, but at least they can’t fully export their censorship.

Filed Under: , , , , , , , , ,
Companies: cnil, google

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Phew: EU Court Of Justice Says Right To Be Forgotten Is Not A Global Censorship Tool (Just An EU One)”

Subscribe: RSS Leave a comment
59 Comments
Killer Gravy-Covered Fries says:

Re: Not A Global Censorship Tool (Just An EU One)

Did you miss the title? Or just aping Masnick sort of claiming total victory in the text?

As I noted below: the title, which Masnick wrote, not me, says IS a LOSS in the EU. — I don’t see how couldn’t be. BUT he’s sort of happy will be a miscellany of exceptions for Google and every other search engine to check.

And his only real objection is some vague good if the links are kept up, instead of accepting a court decision.

So like Masnick, you seem confused.

But now you can un-confuse by ad hom at me, though it won’t help at all, so enjoy.

Anonymous Coward says:

the CJEU is totally biased. it wants to protect the rich and the famous and allows those in that category to go to any and every length to achieve privacy but then allows the total opposite when it’s ordinary people involved. they have to give up whatever they have on those in the first group, where they got that info (and pics if included) and what they intended doing with it! talk about double standards! but then, that is the way of the EU anyway!

Sharur (profile) says:

1st Amendment and Balancing

Unfortunately, your assertion that the 1st Amendment is not subject to "balancing" tests is not true at all.

In the US, the 1st Amendment is subject to balancing tests all of the time (though thankfully it does seem to have a default presumption in its favor that must be overcome). There are all sorts of speech limitations in place, so long as the government shows it has a) an overwhelming legitimate government interest, b) the restriction is as minimal a form as possible to serve said interest and c) there exists no lessor alternative available.

Igualmente69 (profile) says:

Re: 1st Amendment and Balancing

You are wrong, and Mike is correct. Certain categories of expression are not considered protected by the First Amendment such as libel or child porn, and those can be restricted. And general laws which incidentally burden speech are allowed, but not laws which specifically target speech. There is no balancing test. The Supreme Court has rejected such a claim every time it has come up in a case.

Sok Puppette (profile) says:

Re: Re: 1st Amendment and Balancing

… and those excluded categories are total asspulls, based on the feeling that SOME things are just too far beyond the pale… that those things are so bad that they, um, outbalance the fundamental right.

The First Amendment does not say "except for libel", "except for child porn", or "except for all the other stuff that’s magically not protected". Those exceptions are created by balancing the "fundamental" FA right against other rights which may or may not be equally "fundamental".

There’s no reason you couldn’t use the same logic you use to get a libel exception to get an "irrelevant negative information" exception along the lines of the RTBF. There’s simply no principled distinction being made.

Killer Gravy-Covered Fries says:

Where's the Googler's victory? You're entirely against "RTBF"!

As make clear in title.

Since requires a list for exception-making across EU and applies to every corporation, not even challenged, seems like near complete LOSS.

Now, I’ve never been hot on this topic, but sheerly practical questions:

1) GOOGLE will have to comply throughout the large and varied EU and if misses a few places is liable. How is that better than total ban, in which would have one list to look through, not qualified by country?

2) What if some other country DOES impose world-wide RTBF?

Killer Gravy-Covered Fries says:

Re: Re: Where's the Googler's victory? You were entirely against "RT

Then let’s talk about one you are hot on: How can you decry corporate censorship and support copyright law without any cognitive dissonance?

OKAY. But FIRST you state what corporate censorship you mean, which doesn’t include what you and Masnick adocate — take the link above, believe you endorse there Masnick’s view that "literal Nazis" — in YOUR opinion — shouldn’t be allowed on any visible platform.

SO as usual, it’s YOU who are for censorship as enforced by corporations which you foolishly think have your own notions at heart, but which are heartless mechanisms, mere legal fictions.

Where copyright is in the body of the Constitution because an individual right of profiting from creations that needs proteced from thieves, by which the public good IS obtained.

Stephen T. Stone (profile) says:

Re: Re: Re:

Not an answer to my question. How can you say you’re against corporate censorship but still support copyright law, which allows corporations to legally censor the speech and expression others?

And I don’t think corporations have my best interests at heart. They’d sooner rip out my spine and literally have my back than figuratively have my back in some way. That you think I believe otherwise is a grave misunderstanding at best, willful ignorance at worst.

Oh, and two more things:

  1. Corporations have the absolute right to choose what speech will and will not be hosted on the platforms they own. The same goes for people who, say, set up a Mastodon instance or an imageboard. Feel free to cite the law, statute, or “common law” court ruling that says otherwise.
  2. The Constitution of the United States only gives Congress the power to establish and define copyright law. It does not, on its own, establish copyright law or its parameters.
Scary Devil Monastery (profile) says:

Re: Re: Re: Where's the Googler's victory? You were entirely against

"Where copyright is in the body of the Constitution because an individual right of profiting from creations that needs proteced from thieves, by which the public good IS obtained."

False. Article 8 is quite clear that congress is empowered to extend copyright for the reason of "science and the arts". No one has a constitutional right to profit from creations. end of story.

But you knew that, Baghdad Bob, because we’ve been telling you this and linking to the text in question for MANY years now, and yet you keep pushing easily disprovable outright lies as your core argument.

Killer Gravy-Covered Fries says:

Re: Where's the Googler's victory? You're entirely against &quot

Somewhat other topic, but YOU raise it, remarking:

Of course, I have a bit of trouble with the idea of things that are considered fundamental rights — such as freedom of expression —

Unless for "literal Nazis" — in your opinion — then you’re FOR corporations not just "de-listing" but "de-platforming":

https://www.techdirt.com/articles/20190618/18023542427/senator-hawley-proposes-law-to-force-internet-companies-to-beg-ftc-permission-to-host-content.shtml#c425

(continuing above) being "balanced" against things that are not fundamental rights, like "protection of personal data."

So you have no problem with license plate readers, the Amazon Ring, and every other gadget SPYING on us full time, completely collated by GOOGLE mainly, and available to gov’ts for small fee.

You’re not consistently for free speech or freedom from corporate surveillance and control. What use are you, then?

bhull242 (profile) says:

Re: Re: Re:2 The US Constitution is for We The People's good...

Nope. Some people (not just corporations) have their own personal websites and email addresses with all the requisite data stored on their own private servers. Not all online speech is on a corporate-owned platform.

Also, again, we’re only arguing against government control over speech—whether to remove or coerce speech. That simply doesn’t apply to corporate-owned platforms. Based on specific on-point court rulings in the U.S. and the plain language of the U.S. Constitution and CDA §230, the Right to Free Speech as required by the First Amendment and applied to the states and local governments via the Fourteenth Amendment does not restrict, mandate, or regulate privately-owned online platforms’ moderating decisions and are not liable for user-submitted content or the moderation of such.

You have not answered the question, which asked for a legal citation for your assertion.

Sok Puppette (profile) says:

things that are not fundamental rights, like "protection of personal data."

While I tend to be sympathetic, who exactly appointed you to decide which rights were fundamental?

In the US, for the most part, we’ve decided that the 1st Amendment doesn’t have a "balancing" test.

Oh, really? What happens to me if I "express" some corporation’s trade secrets? What happens to some corporation if it "expresses" something misleading in commercial advertising, using the same sort of innuendo that’s allowed in political speech? Where’s the government’s fundamental right to have classified information.

US FA law is full of balancing tests, just like all US constitutional law. The balance may be more strongly tilted than in other places, but it’s still there.

Igualmente69 (profile) says:

Re: Re:

Once again, you are wrong, and Mike is correct. Certain categories of expression are not considered protected by the First Amendment such as libel or child porn, and those can be restricted. And general laws which incidentally burden speech are allowed, but not laws which specifically target speech. Your trade secret claim is a perfect example of this. There is no balancing test. The Supreme Court has rejected such a claim every time it has come up in a case.

Sok Puppette (profile) says:

Re: Re: Re:

Once again, the very creation of those exceptional categories represents a weighing, dare I even say a balancing, of the FA and its guarantees against other concerns.

It doesn’t matter if a court doesn’t use the word "balance". It doesn’t matter if the outcome of the balancing test is a bright line test for lower courts to use. In the end you’re still balancing, and trying to deny it is sophistry.

James Burkhardt (profile) says:

Re: Re: Re: Re:

What you fail to understand is that another fundamental human right comes into play, the right to be secure in your person. The creation of child pornography inflicts well-documented lasting harms on the child. This has lead to a balancing of the fundamental right of expression of the pornographer with the fundamental right right of security of the Person. Posession is a different barrel of fish, and doesn’t impact a discussion of the first amendment.

Mike might call it a different name, but I would expect that if pressed Mike would agree that a "balancing" is occuring due to a conflict of fundamental rights, as opposed to balancing a fundamental right against a non fundamental one.

Sok Puppette (profile) says:

Re: Re: Re:2 Re:

I don’t know if it matters to you, but you’ve abandoned any claims to textualism and are now down in the "I know a fundamental right when I see it" swamp. The US Constitution contains no general right at all to be secure in your person. The phrase appears in the Fourth Amendment, but the scope there is limited to search and seizure, which is not at issue.

So apparently you’re saying there are other sources of fundamental rights, outside of the text of the document itself, that should have weight in US constitutional law. OK, cool. What are those sources, and how do I know whether I’ve found such a fundamental right? Maybe the right to be free from the dissemination of irrelevant negative information is one of them. If it’s not, why isn’t it?

You’re not allowed to do any balancing in your answer. Bright lines and black-and-white categories only.

Also, the child porn restrictions do in fact apply to mere possession, as well as applying to distribution that doesn’t involve producing it to begin with. In fact, the main point of adopting the laws was really to get at distribution, and indeed also at possession. Creation involves child molestation anyway, and that was already illegal, therefore less pressing.

In the US, the right to possession of protected media is treated as part of the right of free speech. Maybe that’s odd, but that really is universal in US law; having and reading it is considered part of the same right as writing or saying it. And, possession aside, distribution sure as hell qualifies as part of the expressive side.

So we have a content-based restriction on expression that has nothing to do with the act production (or of how the production is done, for that matter).

And any part of the harm that’s unique to the porn part, as opposed to the molestation part, is clearly a harm arising solely from that expressive act. That continuing harm does not involve security of the person. It may indeed be emotionally damaging to know that pictures of your past molestation are being distributed, but the damage does not arise from any current, ongoing violation of your actual person.

Which, if we don’t allow ourselves to look at matters of degree and do "balancing", is really very much like the RTBF case, with the ongoing distribution of irrelevant, damaging information being treated as harmful to the subject.

You are going to have a HELL of a time finding a hard-edged, balancing-free distinction between those.

Anonymous Coward says:

Re: Re: Re:2 Re:

The creation of child pornography inflicts well-documented lasting harms on the child.

Not in cases where the child took the pictures themselves. The prosecution of that certainly creates lasting harm, but courts have upheld the criminality of it anyway.

as opposed to balancing a fundamental right against a non fundamental one.

The other fundamental right in this story is privacy.

Sok Puppette (profile) says:

Re: Re: Re:

It’ a stupid question.

If you really try to set up and follow a system of rules that divides all rights, or really all of anything else, into exactly two possible categories of "fundamental" and "not fundamental", with everything solidly on its own side of the line and nothing "not fundamental" allowed to infringe in any way on anything "fundamental", with absolutely no balancing allowed between the categories (and no real guidance on how to do balancing within either category), then you will come up with stupid nonsensical outcomes that cause massive misery.

Especially if you try to do it in any document worded vaguely enough to survive a political process. The US Constitution, for example, is horribly vague in most places, and most of the places where it doesn’t leave wiggle room are poorly thought out.

It’s attractive to try to make absolute distinctions, because you feel like maybe you can make a hard law to prevent some obnoxious abuse of power, but if you really try to do it, with no wiggle room at all, it won’t work. Especially not if you try to have a lot of absolutes, or if you’re arbitrary about which things you make absolute.

Assholes will still find a way to be assholes, and sometimes they will be able to recruit your rules to their side.

That doesn’t mean you shouldn’t have clear rules. It means that you have to understand that the approach has limits.

I say this, by the way, as a person who doesn’t think the US is absolute enough about a lot of kinds of free speech, and who would be very unlikely to support any RTBF rule anywhere in the world.

Sok Puppette (profile) says:

Re: Re: Re:5 Re:

I use the name only for commenting on places like this. I have a couple of aliases, although I don’t use more than one on the same site. You won’t find any of them on my birth certificate. Isn’t that technically what a sock puppet is?

I use the name to make it clear to the reader that I’m not associating the comments with my "real world" identity.

Amusingly enough, one news site decided it didn’t like the name because it looked obviously fake, and made me choose one that looked like a "real name". The one I chose wasn’t, of course, my actual "real name". I can’t imagine what they think they’re accomplishing with that nonsense.

By the way, although I take strong stances and try to shake up assumptions, I do not write comments that I don’t believe, nor do I write comments just to upset people.

I really don’t understand what pissed people off about that one, since I would think pretty much everybody would agree with it if they thought for 15 seconds. But maybe it touched some taboo or another. My first guess would be the part about the US Constitution being poorly written.

nasch (profile) says:

Re: Re: Re:6 Re:

I have a couple of aliases, although I don’t use more than one on the same site. You won’t find any of them on my birth certificate. Isn’t that technically what a sock puppet is?

No, that’s just an alias. A sock puppet is used for nefarious purposes.

https://en.wikipedia.org/wiki/Sockpuppet_(Internet)

I really don’t understand what pissed people off about that one

I assume tribalism. People who identify with the TechDirt tribe saw someone disagreeing with a tribe member, and attacked.

A-Sbeve-Or-Two (profile) says:

Authenticated but Not Correctly Translated? We’ll See.

Noting how many non-English countries are in the European Union, it wouldn’t surprise me if the statement was altered in translation. That happened before with Italy, when the infamous Copyright Directive was brought to the hands of Italy back in May, but a single botched translation would’ve led to wide-scale censorship.
It’s not impossible for this new statement to accidentally be mistranslated, causing confusion.
Here’s a good idea, European Lawmakers: don’t rush the translation process this time.

Anonymous Anonymous Coward (profile) says:

Re: Re: Re: Authenticated but Not Correctly Translated? We&rsquo

I always apologize when I find a need to use Google Translate. But it is better than nothing.

Then, if it was the state department, they have plenty of actual translators, that actually do a good job, so that assertion doesn’t make any sense.

bob says:

Re: Re: Re:2 Authenticated but Not Correctly Translated? We&r

I could only see senior leadership not using the people to translate because of 2 situations

1, they were sending something controversial and didnt want to risk a leak by others in the government. (Yet they assume using google translate is secure for some reason.)

2, they didn’t want to wait to have it translated by an expert and thought they were saving time/money by using google translate. (Again they are assuming google translate was good enough for the job.)

Now has this happened, I have no idea. but knowing the Trump dumpster fire of an administration it isn’t outside the realm of possibilities.

Anonymous Coward says:

Fundamental rights

Of course, I have a bit of trouble with the idea of things that are considered fundamental rights — such as freedom of expression — being "balanced" against things that are not fundamental rights, like "protection of personal data."

Way to omit the part of that phrase that does mention a fundamental right (and you quoted it earlier): the court wrote that freedom of speech was being balanced with "the right to privacy and the protection of personal data", implying that it viewed "protection of personal data" as a way to protect the fundamental right of privacy. See UDHR #12: "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the ​protection of the law against such interference or attacks." (and its European equivalent)

keithzg (profile) says:

Matter of philosophy and legal conception

Of course, I have a bit of trouble with the idea of things that are considered fundamental rights — such as freedom of expression — being "balanced" against things that are not fundamental rights, like "protection of personal data."

Well sure; and I would broadly agree with you. But the EU court’s conception does have "protection of personal data" as a fundamental right. So they aren’t balancing fundamental rights against unfundamental ones, at least in their conception. The U.S., for better or worse, has a very different philosophical/legal tradition on this.

So really the idea you’re (perhaps quite rightly) objecting to isn’t balancing fundamental rights against non-fundamental ones, but rather that "protection of personal data" is being put into the category of fundamental rights by the EU legal system(s).

Sorry to nitpick! But these are very important and potentially nuanced debates to have, and it doesn’t help if different sides talk past eachother.

Cheers 🙂

Anonymous Coward says:

Re: Matter of philosophy and legal conception

The U.S., for better or worse, has a very different philosophical/legal tradition on this.

Even US courts have recognized privacy as a fundamental right—but apparently by choosing random constitutional amendments and then coming up with justifications. Eg: in Roe v. Wade, they said it was the 14th amendment (equal protection); in Griswold v. Connecticut, a combination of 1 (freedom of association), 5 (self-incrimination), 9 (non-enumeration)

Add Your Comment

Your email address will not be published.

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »