ECJ (Case C‑460 20): Exami­na­ti­on of deli­sting requests by search engi­ne operators

The Ger­man Fede­ral Court of Justi­ce (BGH) has refer­red que­sti­ons to the ECJ in con­nec­tion with a deli­sting of web­sites from Goog­le in rela­ti­on to Art. 17 GDPR (right of dele­ti­on) (Judgment of Decem­ber 8, 2022 in Case C‑460/20.).

First, when Goog­le inde­xes, stores, and dis­plays con­tent, it pro­ce­s­ses per­so­nal data as Respon­si­ble. The GDPR then pro­vi­des in Art. 17 a “Right to dele­ti­on“Howe­ver, this does not app­ly if the data in que­sti­on are used for spe­ci­fic pur­po­ses, such as, among others, the Right to free­dom of expres­si­on and infor­ma­ti­on is requi­red. The search engi­ne ope­ra­tor must check or weigh up accordingly.

For this the ECtHR cri­te­ria deve­lo­ped, inclu­ding the con­tri­bu­ti­on to a deba­te of gene­ral inte­rest, the noto­rie­ty of the data sub­ject, the sub­ject mat­ter of the report­ing, the pri­or con­duct of the data sub­ject, the con­tent, form and impact of the publi­ca­ti­on, the man­ner and cir­cum­stances in which the infor­ma­ti­on was obtai­ned, and its accuracy.

In this con­text, the Pro­of of incor­rect­ness of the infor­ma­ti­on dis­se­mi­na­ted by the search engi­ne ope­ra­tor to the data sub­ject, accor­ding to the ECJ. Howe­ver, he or she is only requi­red to pro­vi­de evi­dence that can rea­son­ab­ly be deman­ded of him or her. She is the­r­e­fo­re not obli­ged to take legal action against the web­site operator.

The Search engi­ne ope­ra­tor, for its part, has no obli­ga­ti­on to “actively coope­ra­te” in deter­mi­ning the facts of the case. The­r­e­fo­re, he does not have to “con­duct an adver­sa­ri­al cor­re­spon­dence” with the web­site ope­ra­tor; this would be unre­a­sonable for the ope­ra­tor and could the­r­e­fo­re have the con­se­quence that too much con­tent is listed out. As a result, the ope­ra­tor must delist if the data sub­ject “.pres­ents rele­vant and suf­fi­ci­ent evi­dence”, pro­ving that the incri­mi­na­ted infor­ma­ti­on is fal­se in its enti­re­ty or at least to a not insi­gni­fi­cant ext­ent, for exam­p­le in the form of a judgment, but also in other forms.

Ano­ther inte­re­st­ing point made by the ECJ is that if the search engi­ne ope­ra­tor is awa­re of pen­ding legal pro­ce­e­dings against the ope­ra­tor of the web­site to be deli­sted, it must, “inter alia, for the pur­po­se of ensu­ring that the infor­ma­ti­on is always rele­vant and up to date”, include in the search results a Record war­ningthat the­re is such a pro­ce­du­re pending.

All this also applies to the Image search. The fol­lo­wing state­ment of the ECJ is note­wor­t­hy here, which places images of peo­p­le in the vici­ni­ty of per­so­nal data requi­ring spe­cial pro­tec­tion, at least in the case of dis­clo­sure to unspe­ci­fi­ed third par­ties (cf. alre­a­dy for exam­p­le here):

Inde­ed, the image of an indi­vi­du­al is one of the main fea­tures of his per­so­na­li­tyThe right to the pro­tec­tion of one’s own image is an essen­ti­al pre­re­qui­si­te for the per­so­nal rea­lizati­on of the per­son. The right of the per­son to pro­tec­tion in his own image thus con­sti­tu­tes one of the essen­ti­al con­di­ti­ons for its per­so­nal rea­lizati­on and pre­sup­po­ses, first of all, the con­trol of the per­son over his own image and, in par­ti­cu­lar, the pos­si­bi­li­ty of pro­hi­bi­ting its dis­se­mi­na­ti­on. It fol­lows that, while free­dom of expres­si­on and free­dom of infor­ma­ti­on undoub­ted­ly encom­pass the publi­ca­ti­on of pho­to­graphs, the pro­tec­tion of the person’s right to con­fi­den­tia­li­ty is of par­ti­cu­lar importance in this con­text, as pho­tos can con­vey par­ti­cu­lar­ly per­so­nal or even inti­ma­te infor­ma­ti­on about a per­son or their fami­ly (cf. in this sen­se ECHR, judgment of Febru­ary 7, 2012, Von Han­no­ver v.Deutsch­land, CE:ECHR:2012:0207JUD004066008, §§ 95, 96, and 103, and the case law cited therein).

In addi­ti­on fur­ther that

the publi­ca­ti­on of pho­to­graphs as a non-oral means of com­mu­ni­ca­ti­on a stron­ger impact than published texts can exert on Inter­net users. This is becau­se pho­tos, as such, are an important means of attrac­ting the atten­ti­on of Inter­net users and can crea­te an inte­rest in acce­s­sing the artic­les they illu­stra­te. In par­ti­cu­lar, due to the fact that pho­tos are often acce­s­si­ble to seve­ral inter­pre­ta­ti­ons their dis­play as thumbnails in the over­view of search results can lead to a par­ti­cu­lar­ly serious encroach­ment on the right of the data sub­ject to pro­tec­tion of his or her own image, as descri­bed in para­graph 95 of this judgment, which must be taken into account when weig­hing up the con­flic­ting rights and interests.

The search engi­ne ope­ra­tor must the­r­e­fo­re pro­cess dis­con­ti­nua­tion requests for images. check,

whe­ther the Dis­play of the pho­tos in que­sti­on requi­red is neces­sa­ry to exer­cise the right to free­dom of infor­ma­ti­on pro­tec­ted by Artic­le 11 of the Char­ter, which is available to Inter­net users poten­ti­al­ly inte­re­sted in acce­s­sing tho­se pho­to­graphs through such a search (see, muta­tis mut­an­dis, Judgment of 24 Sep­tem­ber 2019, GC and Others [deli­sting of sen­si­ti­ve data], C‑136/17, EU:C:2019:773, para. 66).

He must fur­ther con­sider whe­ther he is stan­ding a pho­to­graph in an artic­le and illu­stra­te the infor­ma­ti­on con­tai­ned the­r­ein, or whe­ther he is a Pho­to as thumbnail in image search out­side ori­gi­nal con­text dis­plays. The ope­ra­tor may the­r­e­fo­re have to remo­ve a pho­to from the image search even if it does not list the asso­cia­ted artic­le, or at least if an artic­le is listed and the image search would still lead to the article.




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