EU court could dismiss national borders in cyberspace

The RTBF requires search-engines to expunge all links to historical personal information when requested by a citizen of an EU member state.

In a 2014 ruling, the ECJ solidified that right - recognising RTBF by name for the first time, while giving it more clarity.

The links that must be removed are all those that “appear to be inadequate, irrelevant or no longer relevant or excessive ... in the light of the time that had elapsed.” This includes accurate information since that can “in the course of time become incompatible” with EU privacy laws.

Search engines are not required, however, to remove entire articles from the internet.

Unanswered questions

In doing so, the court made clear that privacy protections trump commercial interests, but beyond that, the judges left many questions unanswered.

That has left search engines to assume the role of quasi-governmental bodies in making decisions on expungement requests, as Edward Lee, professor of law at Chicago-Kent College of law, put it.

Google removes links on all its European versions if a person can show that the information from a search for their name is outdated, irrelevant, and an infringement on privacy.

Left unclear was whether search engines should be required to remove such links worldwide. That is why France recently filed its petition to the ECJ, contending that not to do so results in an “absurd” consequence, rendering any privacy of Europeans nonexistent.

Canada’s Supreme Court just ruled in June that Google must globally remove all links of privacy-impinging material, since the “internet has no borders” and Google operates worldwide. Observers say it’s likely the ECJ will make the same case.

Google fears such decisions open the door for governments to universalise their national limitations on freedom of speech – from Thailand’s laws banning insults against its king, to China’s intense scrubbing of political protests, even those disguised as satire.

"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," says Google’s legal spokesperson.

Safe harbour

The ECJ is also considering new legal issues when it revisits a case by an Austrian privacy activist, Max Schrems. His initial complaint led the court to invalidate a Safe Harbour Agreement reached in 2000 between the EU and US. That accord facilitated transatlantic data transfers.

The ECJ agreed with Schrems’s contention that Facebook, and others, did not adequately safeguard data transferred to the US.

The safe harbour wrongly placed “national security, public interest or law enforcement requirements” over privacy principles, the court said. (Since then, a new EU-US framework has been established).

In his new case, Schrems wants himself and 25,000 others worldwide to put forward a collective class action lawsuit, which alleges wrongdoing by Facebook when using personal data and tracking software against EU privacy protections.

Otherwise, it would be difficult for individuals to each challenge Facebook in court - the social media giant would simply win by default.

An ECJ adviser’s decision is due November 7. The case would then return to Austria’s court to consider the merits of Schrems’s privacy concerns. Those decisions could further strengthen privacy protections.

In uncharted territory, global standards are being formed incrementally by courts in sweeping rulings and by search engines’ case-by-case decisions, with Google and others finding themselves filling in the blanks when deciding whether to grant expungement requests. Any other way is not viable, at least not for now.

Filling in the blanks

International organisations are too often immobile, lagging well behind technology’s frontiers, compromised by member states' priorities and politics, and incapable of wielding resolute supranational authority to impose penalties on errant nations and companies. Creating a UN body to police the internet runs counter to prevailing winds.

The emphasis on freedom of speech by the US, and Americans' fears of unbridled censorship, puzzlingly clashes with Europeans’ far more encompassing definition of human freedoms.

In some ways, the discussion is less one of disagreement and one more of talking at different levels in different languages with different mindsets. This will very difficult to reconcile.

Ahead, then, once this new round of ECJ decisions takes hold, we can expect a confusing era of clashing regulations and laws, national bravura responding to extraterritoriality, and default being the modus operandi.

And, yet, the core principle in international law will prevail – the right of nation-states to exclusive competence over their own territory and the mutual respect for each others’ equivalent rights.

James D. Spellman is a global financial communications expert, who follows European Union regulation.