European Court of Justice (ECJ): In a major win for data protection advocates, the Top Court of the European Union comprising K. Lenaerts, President, L. Bay Larsen, Vice-President, A. Prechal, K. Jürimäe, C. Lycourgos, P.G. Xuereb, L.S. Rossi and D. Gratsias, Presidents of Chambers, M. Ilešič(Rapporteur), F. Biltgen, N. Piçarra, N. Jääskinen, N. Wahl, I. Ziemele and J. Passer, JJ., held that Google is bound to de-reference/remove inaccurate data from the search engine where the inaccuracy has been satisfactorily demonstrated by the data subject, without demanding any judicial ruling on the accuracy of the data at issue.
However, the Top Court added that where the existence of administrative or judicial proceedings concerning the alleged inaccuracy of information found in referenced content has been brought to the attention of the operator of the search engine concerned,it is for that operator to add to the search results a warning concerning the existence of such proceedings, for the purposes, inter alia, of providing internet users with information.
The Federal Court of Justice, Germany has requested a preliminary ruling concerning the interpretation of Article 17(3)(a) of Regulation (EU)2016/679 which deals with freedom of expression and information, and Article 12(b) and point (a) of the first paragraph of Article 14 of Directive 95/46/EC, General Data Protection Regulation( GDPR) which deals with Right to Erasure or Right to be Forgotten, read in the light of Articles 7, 8, 11 and 16 of the Charter of Fundamental Rights of the European Union.
TU and RE (data subjects), two executives of a group of investment companies had requested Google LLC first, to de-reference certain articlesfrom the search results carried out on the basis of their namesas they contained inaccurate claims and defamatory opinions and second, to remove the photographs representing them, which were displayed as thumbnails from the results of an image search. The three articles published on the website www.g…net (‘the g-net website’), criticised the company’s investment model andillustrated the luxurious lifestyle of the data subjects.
The data subjects alleged that the operator of the g-net website is engaged in blackmailing companies by first publishing negative reports regarding those companies and then offering to delete them or prevent their publication, in exchange for a sum of money.
Google refused to comply with that request, referring to the professional context in which the articles and photographs at issue were set, and further argued that it was unaware of thealleged inaccuracy of the information contained in those articles.
Question of Law
A. In the latest battle between the right to be forgotten v. right to information, the question before the Court was whether Google has to de-reference inaccurate information where the data subject satisfactorily demonstrates the content at issue to be untrue or is it only by providing a judicial pronouncement declaring such information to be inaccurate that request for de-referencing can be entertained?
B. In the case of a request for de-referencing relating to image search which displays certain photographs as thumbnails, should the context of the original third-partypublication where those photographs were originally uploaded be conclusively taken into account, when the third-party,though linked to the thumbnail but not specifically named, and theresulting context is not shown?
Article 17 of the GDPR which governs the ‘right to erasure’ also known as the ‘right to be forgotten’ provides in paragraph 1 that the data subject hasthe right to obtain the erasure of personal data relating to him or her by the controller.It also states, in paragraph 3, that that right may not be relied on where the processing in question is necessary for freedom of information.
Relying on Google Spain SL and another v. Agencia Española de Protección de Datos,  Q.B. 1022, and GC and others v. Commission nationale de l’informatique et des libertés,  1 WLR 1949, the Court held that while the data subject’s rights to be forgotten override, as a general rule, the legitimate interest of internet users who may be interested in accessing the information in question, that balance may, however, depend on the relevant circumstances of each case, in particular on the nature of that information and its sensitivity for thedata subject’s private life and on the interest of the public in having that information, an interest whichmay vary, in particular, according to the role played by the data subject in public life.
A. Whether Search Engine Operator Bound to Erase Inaccurate Information
The Court held that it is for the person requesting de-referencing on account of the referenced content being inaccurate, to establish the manifest inaccuracy of the information found in that content – which is not minor in relation to the content as a whole – of that information. However, in order to avoid imposing an excessive burden on the data subject thatmay undermine the practical effect of the right to de-referencing, the Court held that thedata subject has to provide only evidence that, in the light of the circumstances of the particular case, can reasonably be required of him or her to try to find in order to establish that manifest inaccuracy.
Hence, the Court held that the data subject cannot be requiredto produce, as from the pre-litigation stage, in support of his or her request for de-referencing made to the operator of the search engine, a judicialdecision made against the publisher of the website in question, even in the form of a decision given interim proceedings. The Court opined that imposing such an obligation on that person would have the effect of imposing an unreasonable burden on him or her.
At the same time, making sure that unnecessary obligation is not imposed on the search engine operator, the Court added that when such a request is processed, the operator of the search engine concerned cannot be required to investigate the facts andto organise an adversarial debate with the contentprovider seeking to obtain missing information concerning the accuracy of the referenced content. The Court noted that it would leave a deterrent effect on the exercise of freedom of expression and of information if the operator of the search engine undertook such a de-referencing exercise quasi-systematically, in order to avoid having to bear the burden of investigating the relevant facts for the purpose of establishing whether the referenced content was accurate.
B. Whether the Context of Photographs/thumbnails sought to be de-referenced is of any significance
In Von Hannover v. Germany, (2004) 40 EHRR 1, the European Court of Human Rights held that while freedom of expression and of information undoubtedly includes the publication of photographs, the protection of the right to privacy takes on particular importance in that context since photographscan convey particularly personal or even intimate information about an individual or his or her family.
The Court opined that the publication of photographs as a non-verbal means of communication is likely to have a stronger impact on internet users than text publications since photographs arean important means of attracting internet users’ attention and may encourage an interest in accessing the articles they illustrate. The Court expressed,
“Photographs are often open to a number of interpretations, displaying them in the list of search results as thumbnails may result in serious interference with the data subject’s right to protection of his or her image, which must be taken into account when weighing-up competing rights and interests.”
The Court further noted that in the instant case, the photographsin question have been used to convey the information and opinions expressed in the alleged inaccurate article, therefore, they form a part of that article. Hence, those photographs when they appear solely in the form of thumbnails in image search, are displayed outside of context and have little informative value.
Consequently, the Court opined that by contrast, if the request for de-referencing of the article at issue were to be granted, the display, in the form of thumbnails, of the photographs contained in that article would have to be removed. The Court expressed,
“If that display were retained, the practical effect of de-referencing the article would be compromised since internet users would continue to have access to the entire article, by virtue of thelink contained in the thumbnails which leads to the internet page on which the article from which thethumbnails are taken is published.”
Hence, answering the second question, the Court clarified that for the purposes of examining a request for de-referencing seeking the removal from the results of an image search carried out on the basis of the name of a natural person of photographs displayed in the form of thumbnails representing that person, 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, but taking into consideration 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.
[TU, RE v. Google LLC, C-460/20, decided on 08-12-2022]
*Kamini Sharma, Editorial Assistant has put this report together.