Vice-President L Bay Larsen,
Presidents of Chambers A Prechal, K Jürimäe, C Lycourgos, PG Xuereb, LS Rossi, D Gratsias,
Judges M Ilešič (Rapporteur), F Biltgen, N Piçarra, N Jääskinen, N Wahl, I Ziemele, J Passer
Advocate General G Pitruzzella
Three articles were published on a third party’s website, whose purpose was to contribute towards fraud prevention, which criticised the investment model implemented by companies in which the applicant data subjects were involved. One article also featured photographs of the data subjects in the form of preview images (thumbnails). When the names of the data subjects were entered into the defendant operator’s search engine, a link to those articles was provided and part of the articles displayed. In addition, when an image search was conducted on that search engine, the thumbnail photographs were displayed in the list of results. Even after the articles and photographs ceased being displayed it was still possible to access them. The data subjects requested the operator, as the controller of personal data processed by its search engine, first, to de-reference the links to the articles from the list of search results, on the ground that they contained inaccurate claims and defamatory opinions, and, second, to remove the thumbnails from the list of search results. The operator refused and the data subjects’ claim before a German court was dismissed. On the dismissal of their appeal, the German appeal court stated that the functions of a search engine had to be accorded particular importance in the context of the balancing exercise between the rights under articles 7 and 8 (respect for private life and protection of personal data) and article 11 (freedom of expression and information) of the Charter of Fundamental Rights of the European Union (“the Charter”). On the data subjects’ further appeal, the German Federal Court of Justice observed that the outcome of the action depended on the interpretation of article 17(3)(a) of Parliament and Council Regulation (EU) 2016/679 (General Data Protection Regulation or “GDPR”) and articles 12(b) and 14(a) of Parliament and Council Directive 95/46/EC. Articles 12(b) and 14(a) of the Directive gave the data subject the right to request the rectification, erasure or blocking of data and to object to the processing of data relating to him. Article 17(3)(a) of the GDPR provided that the data subject’s right to erasure was excluded where processing of their personal data was necessary for the exercise of the right of information, guaranteed in article 11 of the Charter. In those circumstances, the German court stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the questions, in essence, in the context of the balancing exercise between the Charter rights, whether: (i) when examining a request for de-referencing seeking the removal of a link to content that the data subject claimed was inaccurate, that de-referencing was subject to the condition that the question of the accuracy of the referenced content had been resolved; and (ii) when examining a request seeking the removal of thumbnail photographs of the data subject, the original context of the publication of those photographs on the internet had to be taken into account.
On the reference—
Held, (1) while the right to freedom of expression and information could override the rights to private life and to protection of personal data, in particular where the data subject played a role in public life, that relationship was reversed where a major part of the information referred to in a request for de-referencing proved to be inaccurate. When such a request was processed, the search engine operator did not have to investigate the facts and, to that end, organise a debate with the content provider, in order to obtain missing information concerning the accuracy of the referenced content. Accordingly, an operator had to accede to a request for de-referencing where the person who made it had submitted evidence capable of substantiating the request and of establishing the inaccuracy of at least a major part of the information found in the referenced content. The same applied where the data subject submitted a judicial decision made against the publisher of the website, which was based on the finding that the information was, at least prima facie, inaccurate. By contrast, where the inaccuracy of such information was not obvious and there was no such judicial decision, the operator did not have to accede to a request for de-referencing. Where the information was likely to contribute to a debate of public interest, it was appropriate to place particular importance on the right to freedom of expression and of information. Accordingly, within the context of the weighing-up exercise which was to be undertaken between the rights under articles 7 and 8 and those under article 11 of the Charter, article 17(3)(a) of the GDPR meant that, where a person made a de-referencing request to the search engine operator seeking the removal of a link to content which they regarded as inaccurate, that de-referencing was not subject to any condition that the question of the accuracy of the content had been resolved, at least provisionally, in an action brought by that person against the content provider (judgment, paras 53, 65, 71–73, 77, operative part, para 1).
(2) The display of photographs of people in the form of thumbnails constituted the processing of personal data and was likely to constitute a particularly serious interference with the right to privacy and protection of personal data. Consequently, when the operator of a search engine received a request for de-referencing seeking the removal of “thumbnail” photographs of a person, from the results of an image search carried out using the person’s name, it had to verify whether the photographs in question were necessary for the exercise of an internet user’s right to freedom of information, protected by article 11 of the Charter. Where the search engine displayed photographs of the data subject outside the context in which they were published on the referenced internet page, most often in order to illustrate the text elements contained in that page, it had to be established whether that context had, nevertheless, to be taken into consideration when striking a balance between the competing rights and interests. The question of whether that assessment had also to include the content of the internet page in which the offending photograph appeared depended on the purpose and nature of the processing in issue. Accordingly, within the context of the weighing-up exercise which was to be undertaken between the rights under articles 7 and 8 and those under article 11 of the Charter, articles 12(b) and 14(a) of Directive 95/46 and article 17(3)(a) of the GDPR meant that, for the purposes of examining a request for de-referencing seeking the removal of thumbnail photographs from the results of an image search carried out using a person’s name, account had to be taken of the informative value of those photographs regardless of the context of their publication on the internet page from which they were taken, but taking into consideration any text element which accompanied those photographs which was capable of casting light on their informative value (judgment, paras 91, 93, 94, 96, 98, 99, 108, operative part, para 2).
M Siegmann and T Stöber for the data subjects.
B Heymann, J Spiegel and J Wimmers for the search engine operator.
S Charitaki, A Magrippi and M Tassopoulou, agents, for the Greek Government.
G Kunnert, A Posch and J Schmoll, agents, for the Austrian Government.
E Gane and L Liţu, agents, for the Romanian Government.
A Bouchagiar, F Erlbacher, H Kranenborg and D Nardi, agents, for the European Commission.