European Court of Justice Decision on the “Right to be Forgotten”

On 13 May 2014, the European Court of Justice (“ECJ”) handed down a remarkable and ground-breaking decision (case no. C-131/12). In terms of same, it was held that operators of internet-based search engines (such as Google, in the present matter) may be obliged to remove references to personal data from the results lists of a search, even if such data is published on another website.

This is the second setback for Google within a year’s time; on 14 May 2013 the German Federal Court of Justice (Bundesgerichtshof) had ordered it to delete certain auto-complete search terms that infringed personality rights (our partner Hans-Georg Riegger was involved in this matter).

The Facts of the Case

The decision of the ECJ was based on the following facts: A Spanish citizen had noticed that the list of results which came up when he googled his name contained links to two pages of a daily newspaper dating back to the year 1998. These pages contained an announcement in which his name was mentioned, and referred to a compulsory public auction having been conducted. He was accordingly concerned that potential business partners might draw negative inferences from these references concerning his creditworthiness. He therefore requested the daily newspaper to delete the article, and the search engine operator to remove the links to same. The Spanish Data Protection Agency denied his request with respect to the newspaper, given that the publication by same had been lawful at the time. With respect to the search engine operator, however, the authority accepted his complaint and ordered the search engine operator to take the necessary measures to remove the references from its results list and to prevent any access to same in future. The search engine operator instituted legal proceedings against this decision, whereupon the competent Spanish court submitted the matter to the ECJ.

The Decision and its Consequences

The ECJ ruled that, pursuant to applicable data protection laws, a search engine provider may be required to delete links to third party websites that contain personal data, even in the instance that the third party websites are not deleted. This may even apply in cases where the publication of personal data on third party websites is lawful. In this regard it needs to be taken into account that a publication in a list of results may have a stronger impact on personal rights than a publication on a third party website itself, given that internet users can only find the information through the use of search engines in the first place. In principle, a person has a right for his or her personal data not to be made available to the general public through search lists. Only where a special public interest in certain information exists, can exceptions to this right be considered. The respective courts of the Member States will have to answer the question, when such a ‘special public interest’ exists, on a case-by-case basis.

Comment

The decision of the ECJ enables affected persons to take steps against their personal information being available in the public domain, particularly in matters where the operators of third party websites are unavailable. The deletion of the search results effectively achieves the same results as deleting third party website content. Prospects for success exist particularly in cases where content is defamatory or offensive, given that it will be difficult in such cases to assert a ‘special public interest’.

Furthermore, it should be considered that pursuant to recent decisions of German courts, breaches of data protection laws may also violate competition laws. This opens up a completely new playing field for the issuing of competition law warnings (Abmahnungen), where not only the persons concerned with search list results may take action against the search engines operators on the grounds of a concrete violation of law, but also competitors and other organizations may sue search engine operators for violation of data protection laws.

The question remains unanswered, whether search engine operators will only be required to remove certain links when ordered to do so by way of court ruling, or whether they are obliged to take steps to ascertain whether links are permissible on their own initiative. German data protection laws require the deletion of certain data under certain circumstances even without a prior request to do so by the person concerned. This would, however, be neither practicable nor desirable, and would result in the demise of (European) search engines.

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