Following a ruling by the Court of Justice of the European Union (CJEU) in 2014, Europeans enjoy the right to be forgotten. This right makes it possible to ask Google and other search engines to remove links from results, for queries relating to the applicant’s name. The search engine grants or refuses these requests, taking into account several parameters, including the right to information.
Subsequently, the right to be forgotten was reinforced by the right to erasure under the GDPR. And today, its scope is extended by a new judgment of the CJEU. This new ruling concerns the delisting of inaccurate content displayed on search engines.
A dispute at the origin of this judgment
It was the German Federal Court of Justice that asked the Court of Justice of the EU to interpret the GDPR, following a dispute between two managers of investment companies and Google. These two people asked the search engine to dereference Google results from their names that criticize the group.
Indeed, according to the two business leaders, the links concerned by the request contain inaccurate information. Besides that, they also requested the removal of thumbnails displaying their photos, on the search results of their names.
Google did not grant these requests, because of the professional context of this information. In addition, the search engine indicates that it does not know whether the information in the articles is false or not.
The right to erasure of inaccurate information
In its judgment, the CJEU recalls that the right to erasure is excluded when “the processing (note, in this case, the display of information on the search engine) is necessary for the exercise of the right relating, in particular, to freedom of information.”
“However, the right to freedom of expression and information cannot be taken into account where, at the very least, part of the information contained in the referenced content which is not of minor importance proves to be inaccurate”nevertheless adds the Court in its press release.
In essence, when a link that appears on a search engine like Google contains false information, it is no longer protected by the right to information. And the right to be forgotten or erased is exercised.
#ECJ: the operator of the search engine must dereference information when the applicant proves that it is manifestly inaccurate #righttobeforgotten @Google 👉 https://t.co/VGsRk63Zfn
— EU Court of Justice (@CourUEPresse) December 8, 2022
You will have to prove that the information is false
According to the CJEU statement, when a request is made to Google to delist a search result on the grounds that it contains inaccurate information, it is up to the applicant “to establish the manifest inaccuracy of the information or part of it which is not of minor importance.” In other words, you will have to provide solid evidence.
This evidence is sufficient to make the claim. And a court decision against the publisher of the website is not necessary.
“Consequently, in the event that the applicant for delisting presents relevant and sufficient evidence, capable of supporting his request and establishing the manifestly inaccurate nature of the information contained in the referenced content, the operator of the search engine is required to grant this request”, says the CJEU. In other words, Google must accept the delisting request, when there is sufficient evidence of the inaccuracy of the information.
With regard to vignettes, the CJEU’s response is less clear-cut. “ […] the Court concludes that it is necessary to take into account their informative value without taking into consideration the context of their publication on the Internet page from which they are extracted”indicates this one.
Google took note
The CJEU judgment does not put an end to the dispute between Google and the two company directors. Taking this decision into account, it is up to the German courts to settle this one. But as the CJEU notes, its decision is binding on other national courts. In the event of a similar dispute, it is therefore on this new judgment of the Court of Justice of the EU that the justice of a European country will be based.
For its part, Google has already welcomed the decision of the CJEU and indicates that it will analyze it. “The links and thumbnails in question are no longer available through web search and image search; the content in question has been offline for a long time”a Google representative said, according to Politico.
