Scope Of De-Referencing: Advocate General Issues Two Opinions On Obligation Of Search Engine Operators

On 10 January 2019, Advocate General Szpunar (the "AG") issued his opinions in Cases C-507/17 and C-136/17 on the scope of the right to be forgotten with respect to the obligations of search engine operators.

At the outset, it should be pointed out that both cases do not concern the interpretation of the General Data Protection Regulation 2016/679 ("GDPR") but rather Data Protection Directive 95/46, which was repealed on 25 May 2018.

Google v. CNIL: European Territorial Scope of Right to Be Forgotten

On 10 January 2019, the AG issued his opinion in Case C-507/17, Google v. CNIL, on the territorial scope of the 'right to be forgotten'.

The dispute in question stemmed from a disagreement between Google and the French Commission for Information Technology and Civil Liberties ("CNIL"). Google had been served a formal notice by CNIL requesting the worldwide removal of links to webpages generated by searching a person's name.

Google refused to comply fully and only did so for the domain names corresponding to the versions of its search engine in the Member States of the EU, while also proposing to 'geoblock' access from IP addresses deemed to be located in the state of residence of the person concerned. CNIL regarded this proposal as insufficient and imposed a fine of EUR 100,000.

Google sought to have the CNIL decision annulled before the "Conseil d'Etat" which decided to seek clarification from the Court of Justice of the European Union ("ECJ") on several questions.

In its first question, the "Conseil d'État" asked whether the geographical scope of the right to de-referencing under EU law is 'national, European or worldwide'. In other words, does the operator of a search engine, when granting a request for de-referencing, have to perform this de-referencing on all the domain names of its engine so that the disputed links no longer appear irrespective of the place from which the name search was launched?

The AG first clarifies that Google Spain and Google (Case C‑131/12) does not expressly govern the issue of the territorial scope of de-referencing. However, pursuant to Article 52 of the Treaty on European Union, the Treaties apply to the territory of the 28 Member States. Outside this territory, Union law cannot apply or create rights and obligations, without running the risk of violating international law.

The AG acknowledges that even if extraterritorial effects are possible in specific cases affecting the internal market, such as competition...