CJEU rules that Google must remove data when a user proves that the data is ‘manifestly inaccurate’

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CJEU rules that Google must remove data when a user proves that the data is ‘manifestly inaccurate’

Last December, the Court of Justice of the European Union (hereinafter, “CJEU”), in its capacity as the court responsible for interpreting European legislation to ensure its uniform application in all Member States, issued a ruling on Google’s privacy obligations as one of the biggest search engines of the internet.

By this ruling, the CJEU clarifies the criteria for interpreting Article 17 of the GDPR, which establishes the commonly known “right to be forgotten”. 

CJEU: Google must remove links with “manifestly inaccurate” information

While freedom of information and freedom of expression are essential in any democratic society, the CJEU has recalled through the judgment issued last December that the protection of the right to privacy is of particular importance and must not be overlooked in the event of a conflict between the two rights. 

In this ruling, the CJEU states that the operator of a search engine that receives a link removal request to remove from the results of an image search carried out on the basis of a person’s name, photographs displayed in the form of previews depicting that person, must check whether the inclusion of the photographs is necessary for the exercise of the freedom of information of internet users potentially interested in accessing that information. 

The CJEU also clarifies that “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“.

On the other hand, the judgment also rules on the burden of proof that operates in the context of the right to be forgotten held by individuals whose information is offered as a result in the search engine. 

In this regard, it should be clarified that, while, in certain circumstances, the right to freedom of expression and information may override the rights to private life and to protection of personal data, in particular where the data subject plays a role in public life, that relationship is in any event reversed where, at the very least, a part of the information referred to in the request for de-referencing proves to be inaccurate. 

That being so, the judgment handed down last December clarifies for the first time that, for the purposes of examining a link removal request addressed to the operator of a search engine for the removal from the list of search results of a link to a website containing information which the applicant considers to be inaccurate, “such removal is not subject to the condition that the question of the accuracy of the referenced content has been resolved, at least provisionally, in an action brought by that person against the content provider”.

In other words, the applicant can only be required to provide evidence which, having regard to the circumstances of the particular case, can reasonably be required of him in order to prove the manifest inaccuracy. However, this does not imply that search engines should grant link removal requests where the content of evidence indexed to the request does not make it possible to assess the alleged manifest inaccuracy.

Origins of the dispute 

Because the conflict between freedom of information and expression versus the right to privacy has been going on for decades, this is far from being the first ruling by the CJEU on this matter.

The first judgment on the application of the “right to be forgotten to the activity of internet search engines was published in 2014 by the CJEU in the context of the famous case “Google Spain v. Spanish Data Protection Agency”. 

It is worth mentioning the case law of the European Court of Human Rights, which plays an essential role in this matter, as it has been responsible for determining the criteria for weighing up the right to respect for privacy against the right to freedom of expression and information, namely the contribution to a debate of general interest, the notoriety of the person concerned, the subject of the report, the previous conduct of the data subject, the content, form and impact of the publication, the manner and circumstances in which the information was obtained and its veracity.

What does the user need to do to request the removal of a link in search engines?

In addition to complying with his obligation to provide the necessary information available to him to prove the inaccuracy of the website complained of, it is incumbent on any interested party to comply with additional requirements. 

In this regard, the CJEU is clear in stating that an obligation to actively investigate factual elements that are not supported by a prior request cannot be imposed. 

Therefore, the applicant must ensure that he or she can request the removal of all content which he or she considers to be inaccurate.

On the other hand, the aforementioned judgment considers that it is disproportionate to proceed with the removal of links to articles, with the consequence of making it difficult to access the full version of those articles on the Internet, in the event that only certain information of minor importance in the overall content of those articles is inaccurate.

Consequently, it should be noted that the inaccuracy referred to by the complainant must be sufficiently important to justify the removal of the link. 

Other aspects to bear in mind regarding the right to be forgotten on the internet

It should be borne in mind, as the CJEU ruled in its judgment, that any interested party has the right to bring an action before the supervisory authority or the courts when its request is not complied with by the search engine appealed against, so that the latter may carry out the necessary checks and, if appropriate, order the search engine to take the necessary measures.

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