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CJEU gives ruling on ‘right to be forgotten’
Luxembourg's Court of Justice of the EU

08 Dec 2022 / data law Print

CJEU gives ruling on ‘right to be forgotten’

The Court of Justice of the European Union (CJEU) has found that search-engine operators such as Google must remove information found in content, where the person concerned proves that such information is inaccurate.

The court was giving its interpretation of the GDPR data-privacy rules on the ‘right to be forgotten’, after a request from the German Federal Court of Justice.

The German case concerned two managers of a group of investment companies, who asked 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 those articles contained inaccurate claims.

Image search

The two 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.

The original context of the images’ publication was not visible in these searches.

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.

Judicial decision not required

The CJEU judges pointed out that, while the right to the protection of personal data was not an absolute right, the right to freedom of expression and information could not be taken into account where a part of the information found in the referenced content proved to be inaccurate.

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”.

“That person therefore cannot be required, in principle, to produce, as from the pre-litigation stage, a judicial decision made against the publisher of the website in question, even in the form of a decision given in interim proceedings,” the judges continued.

The court added, however, that Google or other operators could not be required to try to find out whether or not information was inaccurate.

“Therefore, 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 judges concluded.

‘Significant interference’

On the issue of ‘thumbnails’, the court said that the display of photos of a person after a search constituted “a particularly significant interference with that person’s rights to private life and their personal data”.

It said that operators who received requests to remove such images would have to separately weigh up the balance of competing rights and interests.

‘The court holds that account must be taken of the informative value of those photos, without taking into consideration the context of their publication on the internet page from which they are taken,” its ruling said.

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