European Union: Forget Me Not: ‘Right To Be Forgotten' Limited To The EU

Last Updated: October 11 2019
Article by Debevoise & Plimpton

Key takeaways:

  • The European Union's highest court limits the GDPR right to be forgotten for internet search engines to the territory of the Union, but most GDPR-covered businesses will still have to honor such requests even where the data resides outside the Union.
  • The right to be forgotten extends also to sensitive data that must not be included in the search engine's list of results unless when strictly necessary to protect the freedom of information of internet users.
  • The court restates that GDPR data protection rights are not absolute and, in some circumstances, might be outweighed by other fundamental rights.

The “right to be forgotten” does not require internet search engines in the European Union to purge search results displayed outside the European Union. So held the Court of Justice of the European Union (“CJEU”) last week, construing the European Union’s General Data Protection Regulation (“GDPR”) in a way that promises substantial relief to Google and its fellow search engines. The CJEU had little relief to offer, though, to other businesses: Most will still have to honor right to be forgotten requests even where the data resides outside the European Union.

The Right to Be Forgotten. When GDPR took effect last year, it gave EU individuals (and those outside the European Union whose data is processed in connection with a business’s EU establishment) the right to ask an organization holding their personal data (a “data controller”) to erase it. For example, a right to be forgotten request typically must be honored if the data is no longer necessary for the purpose it was originally collected, or if the data was processed based on consent, but the individual withdraws that consent.

But the right is not absolute. Under the GDPR, the requester’s interests must be balanced against other fundamental rights and freedoms, such as freedom of expression or the right of defense. In some circumstances, then, the data controller can reject the request or respond by purging only some of the requester’s data.

The right in the GDPR expands a judge-made rule. In a 2014 case involving Google Spain, the CJEU held that internet search engines could be required to “de-reference” links to third-party webpages. That is, if Mr. Gonzalez from Spain was concerned about his personal data surfacing on third-party webpages via Google searches, then Google Spain could be ordered to stop displaying those pages in search results. The GDPR expanded that right (1) to allow individuals to make such requests to all data controllers, not just search engines, and (2) to require that data be deleted where it lives, not just omitted from search results.

Left open—until now—was the question of whether a controller responding to a “right to be forgotten” request had to look beyond EU borders and include non-EU-based data in its response.

For Search Engines, the Right to Be Forgotten Now Stops at the EU’s Edge. Picture Jeanne sitting at her computer in Paris, running a Google search. She starts at, the main site of Google’s U.S. parent company. But Google geo-locates Jeanne’s IP address to France and automatically takes her to Likewise, Frans in Amsterdam is referred to, Maria in Frankfurt to and so on. Now Jeanne asks Google to “forget” her. Can Google limit the search, and purge, of its records to Or must its efforts reach its other national sites in the European Union (.de, .nl, .es etc.), or even beyond the Union (.ca, .jp, .au etc.)?

Those were open questions prior to the new CJEU ruling. The French data protection regulator (“CNIL”) had required Google to implement accepted right to be forgotten requests not only on its EU domains but also on its non-EU sites. Google refused and challenged the order before the Conseil d’Etat—France’s highest administrative court— which referred the matter to the CJEU.

The CJEU held, in a nutshell, that a search engine’s response to a right to be forgotten request should be confined to the European Union. The Court noted that ordering erasure on a global basis would best meet the GDPR’s objectives but nevertheless found that the GDPR currently imposes no obligation on search engines to implement a request to be forgotten outside the European Union.

The Court added that even if such a global right existed, it could not be enforced, as there are currently no cooperation instruments between EU and non-EU authorities. In contrast, the Court found that because there are existing EU-wide cooperation mechanisms, a valid request to be forgotten should be implemented in all EU member states and not only in the member state where the requesting individual resides.

Importantly, the CJEU also required search engine operators to take “sufficiently effective measures” to prevent EU-based individuals accessing “forgotten” links by navigating to non-EU google domains. Put another way, once Jeanne has been “forgotten” by and other EU google domains, Frans in Amsterdam should not be able to use to find the “forgotten” records about Jeanne. The Court did not specify what technical measures should be taken to implement this but asked local authorities to assess the sufficiency of geo-blocking.

The Court also clarified that EU member state regulators or courts could still order that a request to be forgotten be implemented outside the EU on the basis of national standards for the protection of fundamental rights. The door thus remains ajar for EU member states to impose the right to be forgotten outside the Union on Google et al.

What About Non-Search Companies? Non-search companies will likely still be required to honor GDPR right to be forgotten requests, irrespective of whether the data is held inside or outside the European Union. This is because the question referred to the CJEU was specific to the search engine context on the internet. The fundamental rights arguments the Court used to justify its conclusions, including the freedom of internet users to information, are unlikely to apply in most circumstances.

That said, the territorial limitation of the right to be forgotten may apply in industries analogous to search engines and where data is made publicly available on the internet, such as on social media platforms or through data-brokering databases. In these contexts, many of the same arguments that the Court relied on to reach its conclusion would equally apply.

The Balancing of the Right to Be Forgotten with Sensitive Data. In a separate decision issued on the same day, the CJEU clarified how the right to be forgotten is to be balanced with other competing rights when sensitive personal data is concerned. Under EU law the processing of “special categories of personal data”1—often referred to as sensitive data—is prohibited, unless exceptions apply, including valid consent or where justified by substantial public interest. Similarly, the processing of personal data relating to criminal convictions and offences is restricted and requires appropriate data protection safeguards.

The second decision also arose from a referral from the Conseil d’Etat regarding a request to be forgotten made to Google: Here the operator refused to de-reference various links that appeared in search results for the names of EU residents. The links led to third-party websites that contained sensitive personal information relating to individuals’ political opinions, religious or philosophical beliefs, sex life and criminal convictions.

The CJEU previously established that just showing a link in a list of search results can significantly affect the fundamental rights to privacy and data protection because it enables a profile of the data subject to be formed. Under the GDPR, the operator of the search engine needs to strike a balance between the rights of the person making the request to be forgotten and those of users potentially interested in that information.

The Court’s decision now requires that this test is made on the assumption that generally the data subject’s rights prevail over other users’ right to freedom of information.

Consequently, a search engine receiving a request to be forgotten relating to a link to a website on which sensitive data is published must ascertain whether the inclusion of that link in the search results is strictly necessary for protecting the freedom of information of internet users potentially interested in accessing the information. This assessment has to be made based on all relevant factors of the particular case, including the seriousness of the interference with the data subject’s fundamental rights to privacy and protection of personal data.

The search engine has to conduct a similar balancing exercise in the case of links leading to information on legal proceedings and information relating to criminal convictions. If the balance tips in favor of the freedom of information of potentially interested internet users, the Court requires the search engine to adjust the list of results in such a way that the overall picture reflects the current legal position. For example, a link referring to a site reporting an acquittal of the searched person should be displayed ahead of reports about the initial allegations.

Again, the decision is unlikely to have a significant impact beyond the search engine space, with the exception of other online content providers, such as news aggregators or similar service providers. Nevertheless, all businesses can be guided by the decision when assessing competing fundamental rights when they do arise.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Practice Guides
by Mondaq Advice Centers
Relevancy Powered by MondaqAI
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions