CYIL vol. 12 (2021)

CYIL 12 (2021) THE GLOBAL REACH OF THE RIGHT TO BE FORGOTTEN THROUGH THE LENSES … sovereignty” of states. 40 At first glance, the Court chooses the latter. The Court pointed out that many third States either do not acknowledge the right to be delisted or “have a different approach” to it, 41 meaning that they might decide to settle the dispute with the right to freedom of information in favour of the latter. 42 But that it is by no means obvious from the wording of the Directive and the GDPR that the EU legislature has decided to grant a scope for the right in question that extends beyond the territory of the member States. 43 Next, the Court highlighted the difficulties of global redirection, noting that the public interest in access to information varies significantly depending on third States, so the balance of fundamental rights will also differ. Article 17 (3) of the GDPR gives the power to the EU and to authorities of Member States to balance between the mentioned conflicting interests, but not for situations where an extra-territorial application is deemed as more desirable and effective, 44 nor are national supervisory authorities within the EU equipped with proper codes of conduct and mechanisms for the balance of conflicting interests in an extra-territorial situation. 45 So the GDPR does not offer an obligation for a search engine to apply the right to de-referencing on a global scale. 46 In accordance with its approach in the Google Spain case, the CJEU concluded that under EU law there is no obligation to cancel the reference for all language versions of the search engine. 47 The Court preferred a review of the law on an EU scale. 48 Besides, the Court essentially expresses respect for the right of other states to strike a different balance between the right to data protection and freedom of information. The Court tried to provide the highest possible level of protection of the right to data protection, while respecting the international comity 49 and legal diversity. Although even the best intentions of the Court in the matter of international cooperation reduce to nothing when one evaluates such a position from the point of view of the effectiveness of the protection of the right itself. The fact is that it is not possible to fully and effectively enforce this right at the local level because it would give Internet users who search information outside the EU an opportunity to still have access to links that do not apply in the EU. The CJEU is also 40 For further details see: HAMUĽÁK, O., KISS, L. N., GÁBRIŠ, T., KOCHARYAN, H.: “This Content is not Available in your Country” A General Summary on Geo-Blocking in and Outside the European Union. International and Comparative Law Review , 2021, vol. 21, no. 1, pp. 153–183. https://doi.org/10.2478/iclr- 2021-0006. 41 Case C507/17 Google LLC v CNIL. para. 59.

42 Ibid, para. 60. 43 Ibid, para. 62. 44 Ibid, para. 61–62. 45 Ibid, para. 63. 46 Ibid, para. 64–65.

47 Ibid, para. 64. 48 Ibid, para. 66.

49 A clear example of the application of the international comity principle in the field of personal data protection may serve the Brief of the European Commission on behalf of the European Union as Amicus Curiae in support of Neither Party in the case of United States of America v. Microsoft Corporation , where the European Commission, stated that: “Any domestic law that creates cross-border obligations – whether enacted by the United States, the EuropeanUnion, or another state – should be applied and interpreted in amanner that is mindful of the restrictions of international law and considerations of the international comity. The European Union’s foundational treaties and case law enshrine the principles of “mutual regard in the spheres of jurisdiction” of sovereign states and of the need to interpret and apply EU legislation in a manner that is consistent with international law” ( See : p. 7). Available at.: https://www.supremecourt.gov/DocketPDF/17/17-2/23655/20171213123137791_17-2%20 ac%20European%20Commission%20for%20filing.pdf.

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