In its ruling of 8 December 2022, the European Court of Justice made further clarifications regarding the obligations for data subjects and operators of search engines when making/receiving a request for de-referencing (right to erasure).
What preceded
Two managers of a group of investment companies were the subject of articles published online. These articles criticised the group’s investment models and were illustrated by photographs of the managers in luxury vehicles, in a helicopter and in front of an airplane. Internet users could access these articles and photos by entering the names of the managers into Google’s search engine.
The managers requested Google, as the controller of personal data processed by its search engine, to de-reference the links to the articles at issue from the list of search results on the ground that they contained inaccurate claims and defamatory opinions. They also asked Google to remove their photos, displayed in the form of thumbnails, from the list of results of an image search. Google refused to comply with these requests and claimed to be unaware of whether the information in the articles was accurate or not.
The matter ended up before the German Bundesgerichtshof, which decided to stay the proceedings and to refer questions to the European Court of Justice (“CJEU”) for a preliminary ruling. The Bundesgerichtshof asked the CJEU:
1) whether de-referencing by a search engine operator is subject to the condition that the question of the accuracy of the referenced content has been resolved, at least provisionally; and
2) whether, for the purposes of examining a request for de-referencing seeking the removal of photographs from the results of an image search, account should be taken solely of the informative value of the thumbnails as such, in the neutral context of the list of results, or whether regard must also be had to the original context of the publication of the photographs, which is not apparent solely from the display of thumbnails in the context of the list of results.
The CJEU’s findings
First question. The CJEU recalled that the operator of a search engine who receives a request for de-referencing must ascertain whether the inclusion of the link in the list of search results is necessary for exercising the right to freedom of information of internet users (see also Article 17(3)(a) GDPR). Indeed, the right to protection of personal data is not an absolute right but must be balanced against other fundamental rights.
This balancing exercise is always based on a case-by-case assessment of the relevant circumstances, in particular on the nature of the information, its sensitivity to the private life of the data subject and the public's interest in having this information. As such, the right to freedom of expression and information cannot be taken into account when at least a part, which is not minor in relation to the content as a whole, of the information referred to in the request for data erasure proves to be inaccurate.
The question here is (i) to what extent the person who has submitted the request for de-referencing must provide evidence to support his or her claim relating to the inaccuracy of the information, and (ii) whether the operator of the search engine must seek to clarify the facts itself in order to establish whether the allegedly inaccurate information is or is not accurate.
In this regard, the Court finds that the person requesting the removal of the links must establish that the information or part of it is manifestly incorrect. However, that person has to provide only such evidence as may reasonably be required in the light of the circumstances of the particular case. He or she cannot be required to produce, as from the pre-litigation stage, a judicial decision made against the publisher of the website, even in the form of a decision given in interim proceedings.
On the other hand, the Court also clarifies that the search engine operator cannot be required to actively investigate the facts or to seek to obtain missing information concerning the accuracy of the referenced content. This would impose on that operator a burden in excess of what can reasonably be expected.
Accordingly, where a person makes a request for de-referencing and submits sufficient evidence establishing the manifest inaccuracy of at least a part of the information, the operator of the search engine must accede to that request. Of course, the same applies where the data subject submits a judicial decision made against the publisher of the website. By contrast, where the inaccuracy of such information is not obvious in the light of the evidence provided by the data subject making the request, the search engine operator is not required to accede to such a request for de-referencing.
The Court also notes that, where administrative or judicial proceedings concerning the alleged inaccuracy of information found in referenced content are initiated and where the search engine operator has been informed of such proceedings, the operator should add to the search results a warning concerning the existence of such proceedings.
Second question. Regarding the request to remove the thumbnails, the CJEU considered that the display of photographs of a data subject following a search by name constitutes a particularly significant interference with the data subject’s rights to private life and that person’s personal data. Consequently, the operator of the search engine must ascertain whether displaying the photos is necessary for exercising the right to freedom of information of internet users who are potentially interested in accessing those photographs by means of such a search.
According to the Court, a separate balancing exercise has to be made depending on whether it concerns (i) articles containing photographs which illustrate the information provided in the articles and the opinions expressed in them, or (ii) photographs displayed in the list of results in the form of thumbnails outside the context in which they were published on the original internet page.
As such, with regard to thumbnails in the list of search results, account must be taken of the informative value of those photographs regardless of the context of their publication on the internet page from which they are taken.
However, any text element which accompanies directly the display of those photographs in the search results and which is capable of casting light on the informative value of those photographs must be taken into consideration.
To conclude
In response to the preliminary questions, the CJEU provided further clarity on the extent of the obligations and responsibilities incumbent on an operator of a search engine in processing a request for de-referencing based on the alleged inaccuracy of the information in the referenced content. As such, the Court’s ruling provides helpful guidance regarding the oh-so-delicate balancing exercise between the right to private life and to data protection and the right to freedom of expression and information.
Please contact Karel Janssens for further information about this topic and/or for general legal advice relating to privacy and data protection.