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.