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Google v. CNIL: A Commentary on the Territorial Scope of the Right to Be Forgotten

This case note reflects on the question of the territorial scope of the right to be forgotten (RTBF). This question was addressed by the European Court of Justice (ECJ) in the recent Google v. Commission nationale de l’informatique et des libertés (CNIL) case, in which the French Data Protection Authority (DPA) sought to establish the obligation for internet search engines (ISEs) to delist search results in all versions of their search engine. In its September 2019 judgment, the Court did not grant CNIL’s request. However, although EU law does not currently oblige ISEs to delist search results from all versions of their search engine, the Court crucially emphasized that DPAs remain competent to order global delisting. Accordingly, the territorial scope of the RTBF is in principle regional, but may on a case-by-case basis also be national or global where the exercise of balancing fundamental rights so requires. Like the internet, the territorial scope of the RTBF thus appears to be fluid. This case note discusses the Google v. CNIL case from two angles. First, the RTBF entails the exercise of balancing fundamental rights between the right to privacy and the freedom of expression. The RTBF is thereby exemplary of the EU’s privacy-oriented data protection laws, which diverge from more expression-oriented data protection laws outside of the EU. This divergence is concerning for the normative foundation and the feasibility of a global RTBF. Second, the RTBF places a private enforcement obligation upon ISEs, which raises rule of law concerns. Although a global scope is assumed to increase the effectiveness of the RTBF, it would similarly incur an amplification of the existing challenges with its enforcement. This case note establishes that the judgment in the Google v. CNIL case, more so than the January 2019 opinion by Advocate- General Szpunar, actively engages with this complex legal environment and the arguments raised. Notwithstanding this, the disparity between the argumentation of the Court and the AG and the questions left open in the judgment reveal that the territorial scope of the RTBF will remain a contentious topic for many years to come.