Advocate General Szpunar has proposed that the European Court of Justice should rule that the scope of the de-referencing that search engine operators are required to carry out for data protection reasons should be limited to EU countries.
In May 2015, the French Commission nationale de l’informatique et des libertés (CNIL) served a formal notice on Google. CNIL said that when agreeing to an individual’s request for the removal of links to web pages from the list of results displayed following a search performed on that person’s name, Google must apply that removal to all of its search engine’s domain name extensions. Google refused to comply with that formal notice, it only removed the links in question from only the results displayed following a search performed on the domain names corresponding to the versions of its search engine in EU countries
Google had also suggested that internet users would be prevented from accessing the results in question, from an IP address deemed to be located in the country of residence of the person concerned, after performing a search on the basis of that person’s name, no matter which version of the search engine they used. CNIL regarded this proposal as insufficient.
In March 2016 CNIL found that Google had failed to comply with that formal notice by the prescribed time limit and imposed a penalty of €100 000.
Google sought to have the adjudication annulled. Several questions were referred to the Court of Justice.
Advocate General Maciej Szpunar stated that EU law does not expressly govern the territorial scope of de-referencing. As a result, he took the view that a distinction must be made depending on the location from which the search is performed and search requests made outside the EU should not be affected by the de-referencing of the search results. He is therefore not in favour of giving the provisions of EU law such a broad interpretation that they would have effects beyond the borders of the Member States.
Consequently, the Advocate General emphasised that, even though extraterritorial effects are possible in certain clearly-defined cases affecting the internal market, such as in competition law or trade mark law, the very nature of the internet, which is worldwide and found everywhere in the same way, meant that comparison is not possible.
According to the Advocate General, the fundamental right to be forgotten must be balanced against other fundamental rights, such as the right to data protection and the right to privacy, as well as the legitimate public interest in accessing the information sought.
The Advocate General also said that if worldwide de-referencing were permitted, the EU authorities would not be able to define and determine a right to receive information, never mind balance it against the other fundamental rights to data protection and to privacy. This is all the more so since such a public interest in gaining access to information will necessarily vary from one third country to another depending on its geographic location. If worldwide de-referencing were possible, there would be a risk that persons in third countries would be prevented from accessing information and, in turn, that third countries would prevent people in EU countries from accessing information.
However, the Advocate General did not rule out the possibility that, in certain situations, a search engine operator may be required to take de-referencing actions at global level, although he said in his opinion that this case did not justify that.
Therefore he proposed that the Court should hold that, when acceding to a request for de-referencing,the search engine operator is not required to carry out that de-referencing on all the domain names of its search engine in such a way that the links in question no longer appear, irrespective of the location from which the search on the basis of the requesting party’s name is performed.
However, the Advocate General said that once a right to de-referencing within the EU has been established the search engine operator must take every measure available to it to ensure full and effective de-referencing within the EU. This might include ‘geo-blocking’ technique, in respect of an IP address deemed to be located in one of the Member States, irrespective of the domain name used by the internet user who performs the search.
