The German Federal Court of Justice on July 27, 2020 two resolutions on the “right to be forgotten”. In this ruling, the Court departs from its previous case law and submits questions on the right to be forgotten to the ECJ.
Based on Art. 17 GDPR, data subjects may, under certain conditions, request that results in search engines be delisted in order to prevent the further dissemination of linked content. While the data subject has an interest in the delisting, the other Internet users generally have an interest in complete information. The search engine operator also has no interest in delisting due to its business model of mapping the content of the Internet. Such a claim therefore requires a balancing of the fundamental rights and interests of the person concerned (in particular his or her right to privacy and to protection of his or her personal data according to Art. 7,8 EU Charter of Fundamental Rights) with the interests of the search engine operator, the other users, the public and the providers of the linked content. In legal terms, these are primarily freedom of expression (Art. 11 EU Charter of Fundamental Rights) and entrepreneurial freedom (Art. 16 EU Charter of Fundamental Rights).
Search engine operator does not have to take action only in the case of obvious infringements of rights
In its decision VI ZR 405/18, the BGH has now ruled that the search engine operator does not have to take action only when it becomes aware of an obvious infringement that is clearly recognizable at first glance. The BGH thus reverses its previous case law (Judgment of February 27, 2018, VI ZR 489/16 N 36, 52). However, the requirement for Google to take immediate action does not automatically result in a claim for delisting. In the specific case, the BGH rejected a claim for delisting. The plaintiff was the managing director of a regional association of a charity organization. In 2011, this regional association had a deficit of just under 1 million euros, and shortly before this the plaintiff called in sick. Press coverage of this appeared as a result of a “Google” search for the plaintiff’s name.
Submission to the ECJ
In the further proceedings VI ZR 476/18, the plaintiffs, whose photos appeared on a website in a post critical of their employer, also demanded delisting. When “googling” their name, on the one hand their names appeared as part of the posts in the list of results, on the other hand their photos appeared as thumbnails (thumbnails). There were also reports about the business model of the operator of the website on which the critical portrayal was located, according to which it was blackmailing the portrayed companies by publishing negative reports. Google countered the delisting request by stating that it could not verify whether the plaintiffs’ portrayal was actually based on untrue facts.
The BGH suspended the proceedings and now referred two questions to the ECJ for a decision:
- Does the person concerned have to take action in a reasonable manner – e.g. by means of an interim injunction – against the website operator of the linked content first if the facts alleged there are untrue according to the person concerned, in order to clarify the disputed question of untruthfulness in advance?
- Is the context of the web page to be taken into account decisively, even if the web page is linked but not specifically named when the preview image is displayed by the search engine and the resulting context is not also displayed by the Internet search service?
(Still) little clarity
Ultimately, the BGH’s questions for reference are intended to make the process of weighing up the right to be forgotten more comprehensible by means of clear criteria. For search engine operators, however, the departure from the previous case law means that some legal clarity is lost. They now know that they do not have to take action only in the case of obvious infringements. However, the Federal Court of Justice has not provided clear guidelines.