Advocate General Szpunar has advised in his opinion in Case C-136/17 G.C. and others v CNIL that the Court of Justice should hold that the operator of a search engine must, as a matter of course, agree to a request for the de-referencing of sensitive data. However, the operator of a search engine must also ensure protection of the right of access to information and of the right of freedom of expression.
There was a dispute regarding four decisions by the Commission nationale de l’informatique et des libertés (CNIL). CNIL refused to put Google Inc. on formal notice to de-reference various links, included in the results list displayed following a search made on the basis of the complainants’ names, to web pages published by third parties.
The Conseil d’État referred several questions to the Court of Justice about the interpretation of the Data Protection Directive 95/46.
The first question asked whether, having regard to the responsibilities, powers and specific capabilities of the operator of a search engine, the prohibition imposed on other data controllers on processing sensitive data were also applicable to such an operator.
Advocate General Maciej Szpunar stated that Directive 95/46 should be interpreted to take account of the responsibilities, powers and capabilities of a search engine. Therefore, he said that the prohibitions and restrictions laid down by the Directive cannot apply to the operator of a search engine as if it had itself placed sensitive data on the web pages concerned. Because the activity of a search engine logically takes place only after (sensitive) data has been placed online, those prohibitions and restrictions can therefore apply to a search engine only by reason of that referencing and, thus, through subsequent verification, when a request for de-referencing is made by the person concerned.
As a result, the Advocate General proposed that the Court should rule that the prohibition imposed on other data controllers on processing data falling within certain specific categories applies to the activities of the operator of a search engine.
The second question asked if an obligation is imposed on the operator of a search engine systematically to de-reference material. The Advocate General pointed out that Directive 95/46 lays down a prohibition on the processing of sensitive data.
As a result, he stated that the prohibition on the operator of a search engine processingsensitive data requires that operator to agree, as a matter of course, to requests for dereferencing relating to links to web pages on which such data appear, subject to the exceptions provided for by Directive 95/46.
The Advocate General takes the view that the exceptions to the prohibition on the treatment of sensitive data, laid down by Directive 95/46, apply even though some of the exceptions appear to be more theoretical than practical as regards their application to a search engine.
The question of the derogations authorised under freedom of expression and their reconciliation with the right to respect for private life was then addressed by the Advocate General. He proposed that the Court should rule that, where there is a request for de-referencing relating to sensitive data, the operator of a search engine must weigh up the right to respect for private life and the right to protection of data and the right of the public to access the information concerned and the right to freedom of expression of the person who provided the information.
Lastly, the Advocate General addressed the question of the request for de-referencing relating to personal information which has become incomplete, inaccurate or obsolete, for example, press articles relating to a period before the conclusion of judicial proceedings. He proposed that the Court of Justice should hold that, in such circumstances, it is necessary for the operator of a search engine to conduct a balancing exercise on a case-by-case basis between the right to respect for private life and the right to protection of data under Articles 7 and 8 of the Charter of the Fundamental Rights of the European Union and the right of the public to access the information concerned, while taking into account the fact that that information relates to journalism or constitutes artistic or literary expression.
