Introduction

The European Court of Justice has issued yesterday an important judgment in Case C-460/20 Google (Déréférencement d’un contenu prétendument inexact) in the area of EU privacy law and data protection and in particular with regards to the “right to be forgotten”.

What is the “right to be forgotten”

Article 17 of the GDPR provides that, “The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay” if one of a number of conditions applies.

In other words, the right to be forgotten means that individuals have a right under certain circumstances to force search engines to remove links/references about them from the past.

Brief facts of the case

Two managers of a group of investment companies requested Google to de-reference results of a search made on the basis of their names, which provided links to certain articles criticising that group’s investment model. They asserted that the articles contained inaccurate claims. They also requested Google to remove photos of them, displayed in the form of ‘thumbnails’, from the list of results of an image search made on the basis of their names.

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, before which the dispute was brought, requested the Court of Justice to provide an interpretation of the general data protection regulation, which governs the right to erasure (‘right to be forgotten’).

What did the European Court of Justice decide

The Court held that in principle the right to protection of personal data is not an absolute right 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.

Importantly, the Court held that the right to freedom of expression and information cannot be taken into account where, very least, a part – which is not of minor importance – of the information found in the referenced content proves to be inaccurate.

Where the person who has made a request for de-referencing submits relevant and sufficient evidence capable of substantiating his or her request and of establishing the manifest inaccuracy of the information found in the referenced content, the operator of the search engine is required to accede to that request.

The court stated that, although it was for the person making a removal request to establish the manifest inaccuracy of the relevant information, “that person has to provide only evidence that can reasonably be required of him or her to try to find”.

Google’s response to the judgment

In a statement to Politico yesterday, Google stated that it “welcomed the decision” and will “study the text of the CJEU’s decision”.

Practical Importance

The above judgment is important since it establishes that when a user requests de-referencing and submits “relevant and sufficient evidence” that can demonstrate “the manifest inaccuracy” of the information they want to see removed from the Internet, the search engine operator is required to accept to that request.