The Global Network Initiative (GNI) is deeply concerned by recent rulings of the Court of Justice of the European Union (CJEU) that fail to sufficiently consider the risks posed when authorities in European countries assert legal jurisdiction over Internet content beyond their corresponding territorial boundaries. These decisions have had and will continue to have troubling consequences for freedom of expression and privacy across the world.
In Google v. CNIL, a case related to the “Right to be Forgotten,” which allows European Union (EU) citizens to compel search engines to remove links to unwanted information on privacy grounds, the CNIL (the French data protection authority) had demanded that such delistings apply worldwide. The CJEU held that it was not necessary for Google to delist such search results globally. Although the court recognized that “the balance between the right to privacy and the protection of personal data, on the one hand, and the freedom of information of Internet users, on the other, is likely to vary significantly around the world,” it is concerning that the decision left open the possibility that an EU data protection authority or court could order, “where appropriate,” global delistings pursuant to their national legal frameworks.
In Glawischnig-Piesczek v. Facebook, a subsequent case related to the territorial scope of removal orders, the CJEU held that EU law does not prohibit EU countries from requiring that platforms like Facebook remove content that is identical or of “equivalent meaning” to content found illegal, and that it was up to domestic authorities and courts to decide whether they should impose this obligation worldwide. In addition, the Court found it was for domestic authorities and courts to determine whether platforms can be required to remove content regardless of who posts or otherwise amplifies it (i.e., not just future postings by the user who initially posted the offending content), or where that poster is located. The decision holds that EU countries may require platforms to remove content on a global basis “within the framework of the relevant international law,” but provides little guidance on what that framework entails and fails to address the proportionality issues inherent in such an approach.
These decisions break with established practice by allowing global jurisdictional assertions via delisting and removal orders. They represent missed opportunities to identify and circumscribe risks associated with possible jurisdictional overreach. While the CJEU judgments note that the extraterritorial issue was not one that is determined by EU law, they nonetheless fail to duly grapple with the possible impact of global injunctions on well-established and traditionally respected concepts related to sovereignty, conflict of law, and international comity. As a result, they may end up empowering states to order global removals without sufficient consideration of the potential implications, including for human rights to freedom of expression and privacy.
Article 19 of the International Covenant on Civil and Political Rights, in line with other human rights treaties, including the European Convention on Human Rights, protects individuals’ freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers. Justifications for restrictions on this freedom are limited to certain “legitimate purposes” and must satisfy, among other things, the tests of necessity and proportionality. These principles require that a restriction must constitute the least intrusive means to achieve the intended outcome and be proportionate to the interest to be protected.
Global content removal orders would clearly limit the right of domestic users to impart information, as well as the right of foreign users to receive information regardless of frontiers. International and European law requires states to carefully analyze and consider these impacts, as well as whether there are less restrictive and more proportionate means to achieve the underlying interest.
The second-order effects of global delisting and content removal orders will weigh particularly heavily against press freedom and media plurality. Such orders make archival content more difficult to obtain, restrict public access to media coverage, and can have a chilling effect on what journalists and media entities choose to publish. Furthermore, it is likely that powerful figures and authoritarian governments will abuse global delistings and content removals to stifle critical journalistic coverage of their activities.
Global delisting and content removal orders will also impose a heavy cost on information and communications technology (ICT) companies. The GNI Principles on Freedom of Expression and Privacy, which are consistent with the UN Guiding Principles on Business and Human Rights, create a framework to help ICT companies navigate diverse domestic laws while maximizing respect for the freedom of expression and privacy rights of their users, consistent with international human rights law. As such, these frameworks call on ICT companies to “limit […] compliance [with legal orders] to users within [the ordering] country” and to interpret government jurisdiction narrowly “so as to minimize the negative effect on freedom of expression,” especially where decisions to prohibit content lack procedural and substantive consistency with international human rights law.
The rulings may have further implications for the ICT ecosystem. Multiple and overlapping assertions of Internet jurisdiction by different countries, whether in the name of protecting reputations, consumers, or political interests, could make it more difficult for ICT companies to comply with government demands without incurring liability. Requiring global enforcement can inhibit the ability of ICT companies to respect the rights of their users located in other jurisdictions, where the same content may not be prohibited and may even be protected. In addition, the rulings fail to consider the technical capacity required to implement global removal orders and how this might affect smaller players.
Taken together, these judgments could presage a future of the Internet where domestic authorities assert control over content available outside their geographical boundaries. Indeed, India’s Delhi High Court cited both CJEU decisions positively in Ramdev vs. Facebook, which held that platforms must remove illegal content posted from India globally, or else risk losing safe-harbor protection and becoming liable for the illegal content posted by their users. This marks a shift from established norms upholding promotion and permissiveness of expression as the global default from which states can reasonably deviate on a case-by-case basis, to one where states with a lower tolerance for speech can restrict the availability of online content globally, even in other states where it is legally protected.
Greater efforts at intergovernmental and multistakeholder deliberation are needed to determine the appropriate scope of application for domestic legal orders on global Internet companies. GNI encourages supervisory/regulatory and judicial authorities around the world to refrain from asserting global jurisdiction on the Internet and imposing global removal orders. GNI calls on states, companies, and other concerned stakeholders to urgently enhance dialogue and understanding of the unintended consequences of such assertions and to work diligently to establish global standards, based on international law, that ensure the ongoing protection and promotion of freedom of expression and privacy online.
- New World Borders: How Jurisdiction Affects Human Rights Online(September 2018) — This GNI-hosted discussion explored how governments are responding to jurisdictional challenges on the Internet and the corresponding risks for freedom of expression and privacy online.
- GNI Statement on the global delisting case referral to the CJEU and response to the initial ruling by the French data protection authority (July 2017 and May 2016 )
- See more on GNI’s work on jurisdictional assertions and limits.