A recent decision of the CJEU found that operators of search engines are required to remove information from search results where it can be proved that the information is ‘manifestly inaccurate’. Our Intellectual Property team examines the background of this decision and the likely impact on search engine operators.

An important decision recently handed down by the Court of Justice of the European Union (CJEU) concerning privacy rights and, in particular, the right to be forgotten is likely to have a considerable impact on the operations of search engine operators.

Background

Following reference from the German Federal Court of Justice, the CJEU found that operators of search engines must de-reference information which is found to be manifestly inaccurate. However, there is no requirement on the individual requesting the removal to provide a judicial decision or order against the publisher of the offending website in order to qualify for its removal. A search engine can only make a reasonable request for information from the individual requesting de-referencing. The circumstances of each particular case will be taken into account in determining what is reasonable.

The case involved two managers in a group of companies. In 2015, three different articles were published on a website which criticised the investments by companies related to one of the managers. In one of the articles, photographs of that manager and the other manager living a very luxurious life were included. Both managers requested that Google, as the controller of personal data processed by its search engine:

• De-reference the links to the at issue articles because they contain inaccurate claims and defamatory opinions, and
• Remove photos displayed in the form of thumbnails from the list of results of an image search made on the basis of their names.

Requirement to de-reference alleged inaccurate claims

The CJEU found that on receiving a request for de-referencing, the search engine operator must determine if the link to the internet page following a search of the data subject’s name is necessary for exercising the right to freedom of information. This is a right internet users enjoy under Article 11 of the Charter of Fundamental Rights of the European Union.

As a general rule, a data subject’s right to respect for private and family life, and right to protection of personal data, overrides the legitimate interest of internet users who may want to access this information. However, that balance may depend on the relevant circumstances of each case, in particular:

• The nature of the information
• Its sensitivity for the data subject’s private life, and
• The interest of the public in having that information

Where the data subject plays a role in public life, that person must display a greater degree of tolerance for their private life being public.

Evidence required

In considering a request for de-referencing, the obligation will be on the requesting individual to establish that there is a manifest inaccuracy in the content in question. At the very least, the requestor must show that the inaccurate part is not a minor part of the content as a whole. In determining this question, the CJEU also noted that to avoid imposing an excessive burden on the requestor, they only need provide evidence that can reasonably be required of them to establish the manifest inaccuracy. The circumstances of the particular case will need to be considered in determining what can reasonably be required. A judicial decision or order will not be essential to qualify for de-referencing.

As to what is required of search engine operators in these circumstances, operators will be required to take into account all of the rights and interests involved. However, they will not be required to engage in a fact-finding exercise, or to organise an adversarial debate to find missing information. Where an individual has provided sufficient evidence of inaccuracy, the request for de-referencing should be complied with.

The CJEU qualified its decision by saying that it will be considered disproportionate to de-reference content if only information of minor importance is inaccurate. In addition, where a search engine operator decides not to de-reference, the data subject must have the option to refer the matter to the supervisory authority (in Ireland, the Data Protection Commissioner) or the judicial authority (i.e. the Courts). If proceedings are brought to the attention of a search engine operator, a warning regarding the existence of proceedings must be added to the search results.

Thumbnails

The second question referred to the CJEU in this case concerned whether, in the context of a request to de-reference images in the form of thumbnails which appear following an image search, the original context of the publication of those images must be conclusively taken into account.

In answering this question, the CJEU stated that the display, following a search by name, in the form of thumbnails of images of a data subject constitutes a particularly significant interference with that person’s right to privacy. In considering a request for dereferencing in this context, a search engine must identify whether displaying thumbnail images is necessary for exercising the right to freedom of information of internet users generally. If thumbnails contribute to a debate in the public interest, this will be considered an essential factor to be taken into account. In addition, account should be taken of the informative value of the photos regardless of the context of their publication on the internet page where they were taken from and any text element accompanying the photos in the search results which is capable of casting light on the informative value of the photos.

Conclusion

This is an interesting decision which should not be ignored by search engine operators, particularly in view of the fact that:

• A court judgment or order is not required before a request to de-reference must be complied with.
• The context of each request will need to be considered when balancing the rights of the data subject with the right to freedom of information.
• Where the request for dereferencing has been denied by the search engine operator, the data subject may appeal the matter to the DPC and/or the Irish Courts. As a result, we may see increased litigation in this area.
• Where there is ongoing litigation, search engine operators are required to include a notice next to such search results.

For more information on the likely impact of this decision on your operations, contact a member of our Intellectual Property or Technology teams.

The content of this article is provided for information purposes only and does not constitute legal or other advice.