21 July 2017

We might not always have the right to be forgotten


Nothing enrages a certain kind of Englishman more than being told what to do by a Frenchman. So if you’re that sort of Englishman, you’re not going to like this: France is insisting that French law should apply to everyone, everywhere, all the time. It is trying to overturn the basic rules of sovereign jurisdiction, and the power of a government to make the law for its own territory.

It’s all down to Google and the “right to be forgotten”. Certain online services are rather good at reminding us, years after the fact, that we were young once and might have done foolish things. Hence the advent of the “right to be forgotten”: it is now possible to insist, with the law’s help, that Google remove any evidence of past behaviour from the digital archives.

Fine, said these online services initially. If France says it wants something removed, then we’ll stop doing it on our .fr domains. Other places, .uk, .com and so on will be ruled by whatever their law states so it will probably stay there. But that wasn’t really good enough.

It’s helpful at this point to consider English libel laws and how the Common Law has extended them to the internet. To take one rather infamous example, we English are not permitted to know which celebrities enjoy a threesome in a paddling pool of olive oil. Our newspapers were not able to publish the names of the parties involved. Maybe that’s right, maybe that’s wrong, but the law on who can publish about it is quite clear. English libel law, however, does not extend to the United States, where people could read all about it. Actually, as this particular case showed, it doesn’t even extend to Scotland, where they also knew about it. But our own dear libel law has always relied upon where something is read.

So, for example, the New York Times can print anything it likes. But if someone in England reads it, then it is brought under the purview of English libel law. Rachel Ehrenfeld found this out when she wrote a book which potentially libelled someone. The book was not published here but a few copies did make it across the Atlantic. Those few copies were all it took for it to be actionable here.

Dow Jones actually had to cough up over an Australian case. A wire story, written and published in New York, was read in Oz. That was enough to bring the potential of libel under the Oz courts  – even if the only person who read it in the antipodes was the person complaining of potentially being libelled.

That’s why the excision from only .fr as a result of some Frenchman’s right to be forgotten is not enough. It’s trivially easy to find Google.com or .de in France and read the story there. That’s why these versions shouldn’t be searchable inside France.

There are other parallel cases. It’s verboeten to have flea sales in Germany and France and various other countries of Nazi memorabilia. Yet it’s entirely legal for pinheads to buy and sell such stuff in the US. France, which saw a case brought against Yahoo, does not insist that Americans should be banned from buying it, it simply states that Yahoo must not let anyone in France see such marketplaces. So they don’t.

Surely this is sufficient. And it conforms with how we have been dealing with closely related issues for some time now. If the law in a place says you may not see this, or do this, then the internet companies should indeed make sure that you cannot in that place.

This, however, is not what the French are demanding. Instead, they want all forms of the internet across the world to conform with those French laws about data and privacy and the right to be forgotten. It’s right about now that we start putting those wooden walls back into the Channel.

But this isn’t simply about the French trying to impose such extra-territoriality. It’s about the fact that if anyone does, then everyone does. At which point there simply is no national jurisdiction about such matters. There isn’t even anything left of national law itself.

If any country gets to insist that their law covers everyone worldwide, then every country equally gets to do so. At which point the law simply doesn’t work. At minimum, free speech becomes subject to the rules of 192 different nations, possibly even all of the 249 different legal jurisdictions out there. The only way the system can possibly work is if governments only have that sovereign jurisdiction where they are sovereign, within cannon shot of their own shorelines.

We have a word for demanding that foreigners do as we say: colonialism. And we’re not going to let the French do that to us are we?

Tim Worstall is senior fellow at the Adam Smith Institute