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Tel. +44 (0)20 7287 4414
Email. info@brugesgroup.com
The Bruges Group spearheaded the intellectual battle to win a vote to leave the European Union and, above all, against the emergence of a centralised EU state.
The Bruges Group spearheaded the intellectual battle to win a vote to leave the European Union and, above all, against the emergence of a centralised EU state.
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A Couple of Weeks ago the EU Court of Justice Was Widely Hailed for Having Struck a Blow for Free Speech...

ECJ

But don't cheer too loudly yet!


As you probably know, an important part of the mammoth EU General Data Protection Regulation, or GDPR, concerns the "right to be forgotten". This essentially means even if an article about someone is already in the public domain, search engines like Google or Yahoo, and news websites that provide search functionality, have to prevent browsers being able to find it if, according to the estimation of EU data protection authorities and legal technocrats, the subject's claim to blush unseen is more important than the right of the rest of us to know the truth about him.


This right undoubtedly applies throughout the EU, so that (say) a German with something to hide can prevent not only google.de but google.co.uk from unearthing his murky past. In the case last month, however, the French data protection authority, acting supposedly on behalf of the collectivity of fractious Frenchmen with skeletons in their closets, wanted to take matters still further. It argued that under the GDPR any court in the EU had to order worldwide blocking, so that all searchers had to be kept in the dark, whether they were in Paris, France, Pisa, Italy, or Peoria, Illinois. It was this last demand that the EU court, much to the relief of Google and supporters of freedom of information, declined to swallow. Hence for the moment Google remains free to run its search engines as it sees fit outside EU borders.


Why should you think twice before opening the prosecco? Court decisions aren't the most riveting reading, but a perusal of this one (available below if you're a glutton for punishment; it takes about 10 minutes to get through) will give you three reasons.


First, the court dropped a hint that the EU could always legislate, if it wanted, to change this ruling; there was, it said, no reason why it should not take power to insist on worldwide protection for European citizens and for that purpose boss the Internet around wherever it might be. Hints like that, sooner or later, are unfortunately apt to give Eurocrats ideas.


Second, the Euro-judges made it quite clear that that even though courts in the EU didn't have to tell Google to self-censor in the US or Australia, the EU wouldn't stand in their way if they wanted to. So as far as it was concerned it would be quite OK if a court in Rome, solicitous of the amour propre of some particularly irate Italian, ordered a search engine or news outlet to block searches absolutely anywhere. What it did not add, but might have, was that if a court did this it would also be hard under EU law for other EU courts not to give effect to any such judgment.


Third, if you look at the result carefully, the Euro-court did not limit itself to requiring Google to deny information to curious EU internautes about petulant Parisians or joyless Germans with something to hide. One point you have to remember is that anyone in the UK with even a modicum of geekdom knows that from here you can surf not only google.co.uk, but Google in the US, Japan, New Zealand or wherever else you want. What's to stop you going to going to google.nz or whatever to get at the forbidden dirt? In fact Google has tried to take steps to stop this through a geolocation process. But worryingly enough, the court says measures like this are actually required; as a matter of peremptory EU law sites must "effectively prevent or, at the very least, seriously discourage an internet user conducting a search from one of the Member States on the basis of a data subject's name from gaining access, via the list of results displayed following that search, to the links which are the subject of that request." In other words, restrictions must be placed on the information outside the EU we are allowed to access. Admittedly, anyone with a VPN can no doubt get round this. But it is not hopeful that the EU now seems to see fit to treat its citizens with a degree of trust similar to that provided in China or Iran.


We have heard before that the Great Firewall of China may soon be joined by the Great European Firewall. You may once have discounted such an idea. Unfortunately it now seems to be creeping a tad nearer.


http://curia.europa.eu/juris/document/document.jsf?text=&docid=218105&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=1484453

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Friday, 15 November 2019
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