SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
De-indexing requests of URLs from search engines has become a common practice worldwide. In many countries, this practice has been framed as an output in the making of a rightsbased claim articulated by courts. As it has been argued, such understanding of de-indexation
has foundational (i.e., disproportional to freedom of expression and conceptual complexities
from its conception) and operational (i.e., intermediary liability, due process, lack of clear legal
framework, and jurisdictional issues) problems. We hope this paper can become a useful tool
for the analysis of the expanding case law on this topic, and that it contributes to much-needed
debate on this issue.
Decisions of different courts on the practice of de-indexing
1. Jurisdiction
First, consider how courts have dealt with the jurisdictional challenge mentioned before and the
issue of transnational impact. Assuming, for the sake of argument, that the elimination of personal
data is indeed the right remedy to a specific wrong, the only way it could be effective is if the relevant
information is de-indexed from all the databases under the control of the plaintiff. From the point of
view of users, the services provided e.g. by a search engine is one and the same from one country
to the next. However, the jurisdictional limits of national courts have often prevented those results.
In the case of Enrique Santos, the the Federal Criminal and Correctional Chamber in Argentina revoked a magistrate’s order directing Google to remove certain URLs from its index. Google
argued that the order affected the information available in other countries, and therefore violated
the principle of state sovereignty. The Court held that the magistrate’s order impacted domains
and services subject to foreign law and, as such, not only violated national laws of other countries
but also implied that an Argentinian magistrate had the power to decide the content that was to be
found and read on the Internet by people around the world. The proliferation of such orders would
cause significant interference with freedom of expression and the right to seek, receive and disseminate information freely because each state could exercise control over the content available to
citizens of other countries to the detriment of freedom of the press which is one of the fundamental
constitutional rights.
Similarly, in X vs. Privacy Commissioner for Personal Data, the Administrative Appeals Board
of Hong Kong decided to confirm the decision by the Commissioner of Personal Data to close an
investigation launched after the plaintiffs denounced Google’s refusal to de-index several search
results available by entering the plaintiff’s name. The plaintiff argued that the results led to information in newspapers and online forums regarding his arrest due to his participation in an unauthorized assembly and obstructing police officers. The Appeals Board dismissed the appeal on the
grounds that Google LLP was a different entity than Google Hong Kong. The Board argued that
the data processing activities conducted by Google LLP outside Hong Kong and therefore the data
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