The Court of Justice of the European Union has ruled in C-460/20 Google (Dereferencing of allegedly inaccurate content). 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.
Google refused to comply with that request, referring to the professional context in which those articles and photos were set and arguing that it was unaware whether the information contained in those articles was accurate or not.
The German Federal Court of Justice referred the case to the CJEU.
The CJEU ruled that the right to protection of personal data is not an absolute rights but must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality.
The data subject’s rights to protection of private life and protection of personal data override, as a general rule, the legitimate interest users who may be interested in accessing the information in question. However, that balance may depend on the relevant circumstances of each case, in particular on the nature of that information and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary according to the role playing by that person in public life.
However, the right to freedom of expression and information cannot be considered where the information found in the referenced content proves to be inaccurate.
The court says that the person making a request for de-referencing must establish the manifest inaccuracy of the information. However, to avoid imposing an excessive burden which is liable to undermine the practical effect of the right to de-referencing, that person must provide only evidence that can be reasonably be required of them. Therefore, the evidence does not have to be a judicial decision, even in the form of a decision given in interim proceedings.
The Court also said that the search engine operator must consider all the rights and interests involved and all the circumstances of the case, to decide if content may continue to be included in the list of search results carried out using its search engine. However, that operator cannot be required to play an active role in trying to find facts which are not substantiated by the request for de-referencing, to decide if the request is well-founded.
Therefore, where the person who has made a request for de-referencing submits relevant and sufficient evidence capable of substantiating their request, the operator is required to comply with the request.
If the inaccuracy of the information is not clear, the person making the request must be able to bring the matter before the supervisory authority or the judicial authority so that it carries out the necessary checks and orders that controller to adopt the necessary measures. Furthermore, the Court requires the operator to warn internet users of the existence of administrative or judicial proceedings concerning the alleged inaccuracy of content to the extent that it has been informed of such proceedings.
The Court says that photos in the form of thumbnails may constitute a particularly significant interference with that person’s rights to private life and their personal data.
The Court observes that when the operator of a search engine receives a request for de-referencing concerning photos displayed in the form of thumbnails, it must ascertain if displaying those photos is necessary to exercise the right to freedom of information of internet users who are potential interested in accessing those photos. Contribution to a debate of public interest is an essential factor to be taken into consideration when striking a balance between competing fundamental rights.
Account must be taken of the informative value of thumbnails without taking into consideration 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 photos in the search results and which is capable of casting light on the informative value of those photos must be considered.
The judgment comes after the Opinion of the Advocate General was issued earlier this year.
