ECJ rules on the right to be forgotten

Following the Federal Constitutional Court, the ECJ has now also ruled on the right to be forgotten in search engines.

The ECJ ruled that the operator of a search engine must delist the information contained in the listed content if the applicant proves that it
is manifestly incorrect. However, it was not necessary for this evidence to result from a court decision obtained against the publisher of the website.

The facts of the case: Two managing directors of a group of investment companies requested Google to exclude from the results of a search conducted on the basis of their names the links to certain articles that were critical of the investment model of this group. They claim that these articles contained incorrect allegations.

They also requested that Google delete photos of them displayed in the form of thumbnails in the overview of results of an image search performed using their names. In this overview, only the thumbnails were displayed as such, without reflecting the elements of the context of the publication of the photos on the linked website. In other words, when the thumbnail was displayed, the original context of the publication of the images was not named and, moreover, was not recognizable.

Google refused to comply with those requests, citing the professional context of those articles and photos and claiming that it did not know whether the information contained in those articles was inaccurate.
The Federal Court of Justice, before which this dispute was brought, asked the Court to interpret the General Data Protection Regulation, which governs, inter alia, the right to erasure (‘right to be forgotten’), and the Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data, taking into account the Charter of Fundamental Rights of the European Union.

In today’s judgment, the Court recalls that the right to the protection of personal data is not an unlimited right, but must be seen in the light of its social function and weighed against other fundamental rights in compliance with the principle of proportionality. For example, the General Data Protection Regulation expressly provides that the right to erasure is excluded if the processing is necessary, inter alia, for exercising the right of freedom of information.
The data subject’s rights to privacy and to the protection of personal data generally outweigh the legitimate interest of internet users who potentially have an interest in accessing the information in question. However, the balance may depend on the relevant circumstances of the individual case
, in particular the nature of the information, its sensitivity to the data subject’s private life and the public’s interest in access to the information, which may vary depending, inter alia, on the role the person plays in public life.

However, the right to freedom of expression and information cannot be taken into account if at least a part of the information contained in the listed content that is not insignificant for the content as a whole is incorrect. On the one hand, as regards the obligations of the person seeking delisting on the grounds of inaccurate content, the Court emphasizes that it is for that person to prove that the information is manifestly inaccurate or, at least, that a part of that information that is not insignificant to that information is manifestly inaccurate. However, in order to avoid imposing an undue burden on such person which might impair the practical effectiveness of the right to delist, such person shall be required to adduce only such evidence as may reasonably be required of him. In this respect, this person cannot, in principle, be obliged to submit, already at the pre-litigation stage, a judicial decision – also in the form of a decision issued in the proceedings for interim relief – obtained against the publisher of the website in question.

Second, as regards the obligations and scope of responsibility of the search engine operator, the Court states that, as a result of a delisting request, that operator must rely on all the rights and interests concerned and on all the circumstances of the case in order to determine whether content may remain in the results list of the search carried out through its search engine. Nevertheless, this operator is not obliged to actively participate in the search for facts that are not supported by the delisting request in order to determine whether this request is valid.

Consequently, if the person requesting a delisting submits relevant and sufficient evidence that can support his request and prove that the information contained in the listed content is obviously incorrect, the search engine operator is obliged to comply with this delisting request. This is even more true if that person presents a court decision stating that. On the other hand, in the absence of such a court decision, if it is not obvious from the evidence provided by the data subject that the information contained in the listed content is incorrect, that operator shall not be obliged to grant such a delisting request. However, the person requesting delisting in such a case must be able to contact the supervisory authority or the court so that they can carry out the necessary checks and instruct the person responsible
to take the necessary measures. Furthermore, the Court requires the search engine operator to inform the Internet users about administrative or judicial proceedings aimed at resolving the issue of whether information contained in a content is incorrect, provided that such proceedings have been brought to the attention of the operator.

With regard to the display of photographs in the form of thumbnails, the Court emphasizes that the display of photographs of the data subject in the form of thumbnails, following a name-based search, may constitute a particularly strong interference with the rights of that person to the protection of his or her private life and personal data. The Court states that when the operator of a search engine is faced with a delisting request in relation to photographs displayed in the form of thumbnails, it must consider whether the display of the photographs in question is necessary in order to exercise the right to freedom of information enjoyed by Internet users who have a potential interest in accessing those photographs. In this respect, the contribution to a debate of general interest is a decisive aspect that must be taken into account when weighing up the conflicting
fundamental rights.

The Court clarifies that a different balancing of the conflicting rights and interests must be carried out: on the one hand, when it comes to articles that are accompanied by photographs which, in their original context, illustrate the information contained in those articles and the opinions expressed therein, and, on the other hand, when it comes to photographs that are displayed in the form of thumbnails in the results overview outside the context in which they were published on the original website. In the context of the balancing of the photos displayed in the form of thumbnails, the Court concludes that their informational value must be taken into account, regardless of the context of their publication on the website from which they are taken. However, every text element that directly accompanies the display of these photos in the
search results and can provide information about the information value of these photos must be taken into account

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.