The European Court of Justice (CJEU) issued within a few weeks a decision on Google’s right to be forgotten and the other on Facebook on the removal of illegal content that opens up interesting questions about how territoriality should be managed on the Internet.
The Google case on the right to be forgotten
I already discussed the Google case in a previous article. The CJEU held that, as a general rule, following a request to exercise the right to be forgotten under European data protection law, search engines are not required to de-index all worldwide versions of their own search engine, but only EU versions and to discourage European users from using non-EU versions.
The Facebook case on the removal of illegal contents
A different position was taken by the European Court of Justice on a matter relating to Facebook, and the obligation under the eCommerce Directive of the so-called hosting providers (for example, websites hosting their users’ content such as social media) to remove content published by their users declared illegal by a court. In this case, the CJEU has taken a very protective stance on users’ rights, providing that hosting providers such as Facebook must remove worldwide all identical content with content equivalent to that declared illegal.
An obligation to remove content worldwide will have to take into account the limitations imposed by international law and, for example, will have to weigh the compatibility with the principle of freedom of speech. However, in the two decisions, the Court has taken substantially different positions on issues that, in both cases, may have a negative effect on the reputation of individuals, as a result of the ubiquity of the Internet.
My view on Google vs. Facebook cases before the CJEU
The difference in treatment could be justified by the fact that these scenarios fall under different regimes and have different circumstances. In the case of the exercise of a right to be forgotten under data protection law, we are dealing with true news, but no longer current news. On the contrary, with regard to the obligation to remove illegal content under eCommerce law, the content is illegal, because, for example, it could be false or defamatory.
Another difference is given by the circumstance that the position of the CJEU in the Facebook ruling seems to require (but is not entirely clear on the point) the prior issue of a decision by a court that declared the content illegal and ordered its removal worldwide.
The right to be forgotten, on the other hand, is a right of the individual for whom entities like Google receive thousands of requests per day without a previous decision or filtering by a court that recognized the validity of the request. However, even in this case, if the conditions for the exercise of the right to be forgotten are considered to be present, why should its territorial scope be limited?
I believe that we are in a transitional phase in which even the European courts have not yet decided what direction to take. In this period, it becomes crucial to accurately define the strategy because, when several options are on the table, the final result could be substantially different depending on which right is being exercised. The outcome might depend on the applicable legal basis, as it happened with Google and Facebook before the CJEU.
On the topics above, you may find interesting the article TripAdvisor convicted for misleading claims on truthful reviews.