Yesterday, 23 November 2016, Open Net Korea intervened in Google v. Spain, concerning the worldwide application of a national concept of “the right to be forgotten”. In a decision of 16 March 2016, the CNIL ordered, in response to a RTBF request made by a French resident, Google to delist from the search results shown to all web users around the world. We intervened against that order. You can read the summaries of the brief and the full list of the organizations here and what follows is a unique argument that Open Net Korea contributed to:
Generally, a delisting order is different from other orders designed to restrict dissemination of information. A delisting order does not declare certain data “unlawful” but simply aims at partially suppressing availability of that data. The assumption under the RTBF jurisprudence is that the general public will find that data largely irrelevant, and therefore that the data should be allowed to exist but should not be easily discoverable by them. The gravamen is not about protecting the public or the data subject from harmful or “prejudicial” (the term used by Google Spain decision) information but it is about injecting some sort of fairness into data governance by moderating people’s access to the lawful data. If this is the theory, we think that the scope of such moderation should be limited to only those people that the deciding authority has jurisdiction over or at least has some political connection with. For instance, European authorities lack not only expertise at Asian sensibilities concerning what they may find relevant in data about other people, but lack political qualifications to decide what is fair for Asians to have access to.
It is especially so because the type of fairness that Google Spain jurisprudence strives for is relevance: the idea is that certain facts are “no longer relevant” to the personality of data subjects. Assuming arguendo that such relevance can be stably conceptualized, if it is relevance that the Google Spain jurisprudence is trying to restore to the data universe, or equivalently, if it is trying to carve out irrelevant data from the universe of searchable data, then a delisting order should be tailored or limited to carving out ONLY such irrelevant data. Now, for instance, the fact of the house auction can be legally made irrelevant in Spain or EU by the force of the Google Spain decision. However, in many other jurisdictions, relevance may be defined differently, and such information may be found relevant. For instance, as a commentator points out, “The fact that a Spanish lawyer had his house auctioned off to pay his social security debt 12 years ago may be uninteresting to most of us but may be very important to an obscure researcher studying on reform of Spanish judicial professions.” The Google Spain court may have decided that such obscure research possibility does not make the data relevant but its decision is applicable only in areas where the court has expertise on and political relationship with the people to whom the data is supposedly irrelevant.
In sum, the focus of RTBF jurisprudence is not the information itself but the people’s interest in that information. It is fair that only the authorities wielding jurisdiction over those people can issue a delisting order restricting their access to the data. It is against democracy for foreign authorities to decide what domestic people may find relevant or irrelevant. (FYI, Open Net Korea has for the same reason opposed MLAT bypass proposals which allow foreign authorities to rule on domestic data holders’ privacy.)