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03322 5078053

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
are obviously 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 these requests, citing the professional context of these articles and photos and claiming not to have known whether the information contained in these articles was incorrect.
The Federal Court of Justice, which is hearing this dispute, has asked the Court of Justice to interpret the General Data Protection Regulation, which governs, among other things, 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 explicitly provides that the right to erasure is excluded if the processing is necessary, inter alia, for the exercise of the right to freedom of information.
The data subject’s rights to privacy and to 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 compensation may depend on the relevant circumstances of the
case, in particular the nature of this information, its sensitivity to the private life of the data subject, and the public’s interest in accessing the information, which may vary depending, among other things, 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 seeking delisting in such a case must be able to contact the inspection agency or the court so that they can make the necessary verifications and notify the person responsible for
instruct 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 crucial consideration that must be taken into account when weighing the conflicting
fundamental rights must be taken into account.

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, any text element associated with the display of these photos in the
search results directly and can provide information about the information value of these photos

Marian Härtel

Marian Härtel

Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.

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