Speech, Privacy and Dignity in France and in the U.S.A.: A Comparative Analysis
82 Pages Posted: 11 Oct 2016 Last revised: 17 Oct 2016
Date Written: October 9, 2016
The divide between France and the United States on the balancing between freedom of expression and privacy rights was recently revived in reference to evolutions concerning the freedom of expression on the Internet. The recent decision of the Court of Justice of the European Union (CJEU) spurred a lot of controversy in the United States by recognizing a “right to be forgotten.” The CJEU held that a person can request a search engine to remove from its results elements that concern them. Google interpreted the CJEU decision as obliging it to remove search results from its European sites only. Nevertheless, in June 2015 the French data protection authority, known by its French acronym, CNIL, ordered Google to remove links from its database entirely, across all locations. The CNIL adopted an expansive interpretation of the ruling which applies to all of Google’s domains and not, as Google contends, only to the company’s regional domains in Europe. Google has refused so far, and the dispute is likely to arrive to courts soon. If upheld, the French regulator’s order would mean that Americans are prevented from having access to material that is legal in the U.S. This controversy stems from the consolidated status of the law in France, and more generally in Europe, that gives primacy to the protection of the right to privacy when it conflicts with the right to freedom of expression. The recent decision of the CJEU recognizing the right to be forgotten emphasizes an attitude, which already exists in the case law concerning press freedoms on the two sides of the Atlantic. This article analyzes the long history of the balancing between speech and the right to privacy in France and the U.S.A. It aims to show that there exists a deeply rooted divide that has long origins in the state of the law. The origins of the divide lie in the particular importance of freedom of expression in the U.S. constitutional order, which sees its abuses as acceptable. They also lie in the low valuation of informational privacy in the US. Although freedom of expression is a liberty that can be abused according to the dominant conception in the U.S., French law accepts limitations in order to protect other competing rights, like the right to privacy. This article presents the history of the protection of freedom of expression in France and in the U.S. as well as of the right to privacy to help understand the more recent controversies on these issues.
Keywords: Freedom of Expression, Privacy, Right to Be Forgotten, USA, France, CJEU, US Supreme Court
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