Nani Jansen Reventlow is a human rights lawyer at Doughty Street Chambers in London. Christopher T. Bavitz and Vivek Krishnamurthy are, respectively, the managing director and assistant director of the Cyberlaw Clinic at Harvard Law School.
Imagine going online to do some research. You want to look up the date of the Tiananmen Square massacre, read up on the recently deceased king of Thailand or learn about the Armenian genocide. You enter the search terms in your search engine of choice, and you get nothing. Zero results.
This scenario might become reality if France’s highest court — the Council of State — rules against Google in a case that threatens to make anything on the Web that’s remotely controversial unsearchable.
The case imperiling search as we know it stems from an order issued in 2014 by France’s data protection authority, CNIL. The order commands Google to remove 21 links from the results of a search on the name of a particular French citizen who asserted a “right to be forgotten.”
Google initially complied by removing the offending links from its French search site, google.fr, and its other European search sites (such as google.de and google.it). When CNIL balked at this approach, Google went further and blocked the links from results returned to European users accessing one of its non-European sites (such as google.com or google.ca).
None of this has satisfied CNIL. It insists that whenever it orders certain content to be “forgotten” from search results, its decision must be given effect worldwide.
CNIL’s claim that it possesses the power to pierce worldwide holes into Web search results is dangerous and wrong. It violates the golden rule of international relations that countries should legislate only within their borders.
Even some authoritarian governments respect this rule more than CNIL does, requiring access to content deemed unlawful to be restricted only within their borders. In Istanbul today, you won’t be able to watch YouTube videos criticizing modern Turkey’s first president, Mustafa Kemal Ataturk, but they’re freely available everywhere else. Likewise, in Lahore, you won’t be able to visit Facebook pages that the government deems blasphemous, but they’re perfectly easy to access in Lagos, London and Los Angeles. If the French Council of State sides with CNIL, would the Turkish and Pakistani governments remain content with the status quo? Or would they seize upon this ruling to disappear content they don’t like from search results worldwide?
Consider what a search for “Armenian genocide” would turn up in the world CNIL threatens to create. Turkey’s laws against “insulting Turkishness” criminalize discussing “Armenian genocide,” while Switzerland’s laws forbid its denial. If both countries follow CNIL and require their laws to be applied worldwide on the Web, a search for “Armenian genocide” would yield precisely nothing.
Or consider what a search on the names of Vladimir Putin or Abdel Fatah el-Sissi would return if Russia or Egypt’s laws dictate what results Google or Bing can display. Critical content would disappear from browsers not just in Moscow and Cairo, but also in Munich and Chicago, Mumbai and Cartagena, and all points in between. Internet users would be presented not with the true range of views on these controversial figures but only propaganda.
This is what hangs in the balance as the French Council of State decides the case between CNIL and Google. As the highest court of the country that invented the concept of human rights, it must not set a precedent that others will inevitably use to censor search results they don’t like. To rule otherwise would condemn all of us to rummaging through the chaff of the Web for the needles we seek without the magnetic power of search.