April 25, 2022
TU and RE issued proceedings against Google LLC seeking the removal of certain links displayed in searches made using Google’s search engine that led to third-party articles identifying TU and RE. They also sought the removal of thumbnail photographs in one of the articles.
TU held responsible positions in various companies providing financial services. RE was TU’s cohabiting partner and, until May 2015, held general commercial power of representation in one of those companies. Three articles appeared on the website g-net criticising, and expressing doubts as to the reliability of, the investment model of several of those companies, one of which featured four photographs showing TU and RE driving luxury cars, in a helicopter and in front of a charter plane, thereby suggesting that they were enjoying a life of externally financed luxury. TU and RE requested Google to remove the articles, which, in their view, contained several incorrect allegations and defamatory opinions based on false statements, and to remove the thumbnails from the list of search results.
The German Federal Court of Justice referred two questions to the CJEU. The first concerned the function of search engines and the tension created between the fundamental rights set out in Articles 7, 8 and 11 of the Charter of Fundamental Rights of the European Union where the data subject challenges the truth of the processed data and requests, for that reason, the de-referencing of links to content published by third parties in which the data appears. The second question concerned the necessity of taking into account the content of a web page when considering a request for the removal of thumbnails contained therein.
Advocate General Pitruzzella clarified a search engine operator’s obligations when dealing with a request for de-referencing based on a claim not supported by evidence that some of the information appearing in the referenced content is false.
The AG noted that the fundamental rights to respect for private life and protection of personal data are not absolute; the right to protection of personal data must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality, due weight being given to the right to inform.
Where the data subject plays a public role, the AG said that while the right to inform and the right to be informed prevail, that tendency is reversed where it has been established that the information processed is untrue. Not only does the accuracy of the data constitute one of the conditions of lawfulness of the processing of personal data but the right to freedom of expression and information, which is both active and passive, cannot be placed on an equal footing with the fundamental rights to a private life and protection of personal data when it relates to false information. In this case, the AG said, the prevailing criterion of human dignity, established in Article 1 of the Charter of Fundamental Rights, applied. Untrue information not only infringes the fundamental right of the person concerned to protection of personal data but also ultimately affects his or her dignity in that it puts forward a false representation of him or her, thus altering his or her identity.
Where the truth of the information processed by the operator of the search engine is at issue, balancing the fundamental rights concerned is an important exercise, at least when it has not yet been established whether the information is true or false, the AG said. While the operator of a search engine cannot be required to carry out general monitoring of all content hosted to verify its truth, that operator must also play an active role in eliminating from its search results content that includes false personal data, in accordance with the special responsibility associated with the function of a gatekeeper of information.
Therefore, the AG said, de-referencing cannot be carried out on the basis of a simple unilateral request by the data subject, and the data subject cannot be expected to apply to every editor of a web page and request the removal of the content claimed to be false. In the AG’s view, it is for the data subject to indicate the evidence on which the request is based and provide prima facie evidence of the false nature of the content whose de-referencing is sought. The operator of the search engine is required, for its part, to carry out checks within its capabilities to confirm or otherwise the merits of the request, by contacting, where possible, the publisher of the referenced web page, and to decide whether to grant the request for de-referencing. If the article concerns a person who has a public role, the decision to de-reference will have to be based on particularly strong evidence that the information is false, the AG said. Finally, in order to avoid irreparable harm to the data subject, the operator of the search engine should be able temporarily to suspend referencing or to indicate, in the search results, that the truthfulness of some of the information is contested.
As for thumbnails, the AG noted that the same rules apply to an image search for a name using a search engine as apply to web searches and that by retrieving the photographs of people published on the internet and reproducing them, the operator of a search engine is offering a service whereby it processes personal data, distinct from both that of the publisher of the web page from which the photographs are taken and from that of referencing the page.
According to the AG, when balancing conflicting fundamental rights, account should be taken only of the informative value of the images, independently of the content of which they form part on the web page from which they are taken. Considering that an individual’s image is in fact one of the chief attributes of his or her personality, it followed, the AG said, that the protection of the right to privacy takes on a particular importance in that context given the capacity of photographs to convey particularly personal and even intimate information about an individual or his or her family. (Case C-460/20 TU v Google LLC EU:C:2022:271 (Opinion of Advocate General) (7 April 2022) — to read the Opinion in full, click here).