The territorial scope of right to be forgotten in light of the CJEU judgment in Google v CNIL

Abstract

In the landmark judgment C-507/17, Google v. Commission Nationale de l’Informatique et des Libertés (CNIL) the Court of Justice of the European Union considered the question of the territorial scope of the Right to be Forgotten (RtbF) found in Article 17 of the GDPR. The Court ruled against the extraterritorial application of this right, in that it should only be applied within the borders of the EU Member States. Nevertheless, the court did not exclude the possibility for national courts and data protection authorities (DPAs) to allow global de-referencing in cases where the protection of privacy and personal data of an individual outweighs the public’s interests. While the court recognised that for the RtbF to be fully effective, global de-referencing on all versions of a search engine would need to be carried out, it also recognised that there are third States which do not recognise the RtbF. Therefore, this research will engage with the merit of the limitations of the territorial scope of RtbF and whether the RtbF can provide full protection, not just in theory but also in practice. Furthermore, in the Court’s analysis it was established that other countervailing rights such as freedom of expression and information should be taken into consideration and a balancing test should be undertaken. This study will examine this issue by analysing judgments delivered by both the CJEU and the ECtHR. The lack of clarity on how the balancing exercise is to be applied, allows EU Member States a measure of discretion on how such balance is to be enforced through national standards in order to determine if a universal application of RtbF is possible. This could be a threat to the EU’s goal of achieving a harmonised interpretation and application of the GDPR. The study concludes by proposing different mechanisms that could provide for the standardisation of the application and enforcement of the ‘right to be forgotten’ on an international level.