The Advocate General has issued an opinion in the case of Case C-460/20 Google. The opinion states that a request for de-referencing due to allegedly false information requires a search engine operator to carry out the checks which fall within its specific capacities. In addition, if a request is made to remove thumbnails from the results of an image search, only the informative value of the images in their own right should be taken into consideration.
TU and RE brought an action against Google LLC seeking:
- the de-referencing of certain links displayed in searches made using Google, which lead to online third-party articles identifying TU and RE and,
- ending of the display of the photographs accompanying one of those articles in the form of preview images (thumbnails).
The articles concerned suggested that TU and RE were enjoying a life of externally financed luxury. Therefore, TU and RE requested Google LLC to de-reference the articles in question, which, in their view, contained incorrect allegations and defamatory opinions based on false statements, and to remove the thumbnails from the list of search results.
The German Federal Court of Justice referred the case to the CJEU.
Advocate General Pitruzzella has now issued an Opinion about the obligations on an operator of a search engine considering:
- the classification of search engines’ activities as ‘processing of personal data’, and the identification of the search engine operator as ‘the controller’ of the processing of that personal data under Directive 95/46 3 and the GDPR.
- the potential serious interference with the fundamental rights of the data subjects arising from the operation of a search engine.
- the need to take into consideration all the fundamental rights concerned in the context of a request for de-referencing made to the operator and to strike a balance between those rights, which takes account the circumstances of the case and also the technological characteristics of the internet environment.
- the attribution to the operator of the role of weighing up the fundamental rights to ensure that that processing meets the requirements in the GDPR (and Directive 95/46). That role was however codified in Article 17 of the GDPR.
The Advocate General states that de-referencing cannot be carried out on the basis of a mere unilateral request by the data subject and that the data subject cannot be required to apply to the editor of a web page and request the removal of the content claimed to be false. According to the Advocate General, it is for the data subject to indicate the evidence on which the request is based and provide prima facie evidence of the false nature of the content whose de-referencing is sought. The search engine operator is required to carry out checks to confirm the merits of the request. If the article concerns a person who has a public role, the decision to de-reference will have to be based on particularly strong evidence that the information is false. Finally, to avoid irreparable harm to the data subject, the operator of the search engine will be able temporarily to suspend referencing or to indicate, in the search results, that the truthfulness of some of the information is contested.
The Advocate General noted that the same rules apply to name searches for images via a search engine on the internet as apply to web searches and that by retrieving the photographs of natural persons published on the internet and reproducing them, the search engine operator offers a service in which it carries out autonomous processing of personal data which is distinct both from that of the publisher of the web page from which the photographs are taken and from that of referencing that page. According to the Advocate General, in the context of the balancing of conflicting fundamental rights to be carried out for the purposes of examining a request for removal of thumbnails from the results of an image search, account should be taken only of the informative value of the images in their own right, independently of the content on the web page from which they are taken.
Considering that an individual’s image is one of the chief attributes of their personality, it follows that the protection of the right to privacy takes on a particular importance in that context given the capacity of photographs to convey particularly personal and even intimate information about an individual or their family.
