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In Case C-460/20, TU, RE v Google LLC, decided on 8 December 2022, the European Court of Justice delivered a preliminary ruling on a request made by the German Federal Court of Justice (the “Referring Court”), wherein the Referring Court requested the European Court of Justice to interpret the ‘Right to erasure’ as found in Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, (the “General Data Protection Regulation”) and the ‘Right of access’ and ‘The data subject’s right to object’, as found in Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (the “Processing of Personal Data Directive”), in light of Articles of the Charter of Fundamental Rights of the European Union (the “Charter”) relating to the respect for private and family life; protection of personal data; freedom of expression and information; and the freedom to conduct a business.

Case Background and Preliminary Questions

TU and RE (the “Applicants”), being managers in a group of investment companies, had requested Google LLC (“Google”), as the controller of personal data, to de-reference search results made on their names, which led a user to articles which criticised the group of companies’ investment model, and to further remove thumbnail pictures of the Applicants, from an image search made on their names. The request by the Applicants to Google was made on the basis that such articles were inaccurate and contained defamatory opinions. However, Google had refused this request, as it held that it was unaware of the inaccuracy or otherwise of the articles in question.

Consequently, the Applicants brought an action before the German Regional Court in Cologne, seeking an order requiring Google to de-reference the articles and to remove the thumbnail pictures. By judgement of 22 November 2017, the German Regional Court dismissed the request. Although the Applicants appealed this decision before the German Higher Regional Court in Cologne, the latter court again dismissed the appeal and held that:

“[S]ince the applicants in the main proceedings have not proven that the facts reported in relation to them are inaccurate, Google is unable to carry out a final assessment of the articles at issue in the main proceedings and, consequently, is not required to de-reference them.”

In view of this decision, the Applicants brought another appeal before the Referring Court. The Referring Court requested the European Court of Justice to provide an interpretation of the General Data Protection Regulation and the Processing of Personal Data Directive in the light of the Charter of Fundamental Rights of the European Union. The questions referred to the European Court of Justice by the Referring Court were the following –

1. Is it compatible with the data subject’s right to respect for private life and to protection of personal data, if, within the context of the weighing-up of conflicting rights and interests arising from the Charter, the link, the de-referencing of which the applicant is requesting, leads to content that includes factual claims and value judgements based on factual claims the truth of which is denied by the data subject, and the lawfulness of which depends on the question of the extent to which the factual claims contained in that content are true?
2. In the case of a request for de-referencing made against the data controller of an internet search engine, which in a name-search searches for photos of natural persons which third parties have uploaded on the internet in connection with the person’s name, and which displays the photos found in the search results as preview images (thumbnails), within the context of the weighing-up of the conflicting rights and interests arising from the Charter pursuant to the Processing of Personal Data Directive and the General Data Protection Regulation, should the context of the original third-party publication be conclusively taken into account, even if the third-party website is linked by the search engine when the preview image is displayed but is not specifically named, and the resulting context is not shown with it by the internet search engine?

Interpretation and Decision of the European Court of Justice

As regards to the first question, the European Court of Justice held that although Article 17(1) of the General Data Protection Regulation, also referred to as the ‘Right to Erasure’, provides that the data subject has the right to obtain the erasure of personal data relating to them by the controller, Article 17(3)(a) of the General Data Protection Regulation clarifies that such right may not be relied on where the processing in question is necessary for exercising the right of freedom of expression and information.

In opining on the rights and obligations of the parties, the European Court of Justice declared that the person requesting de-referencing on account of inaccurate content must establish the manifest inaccuracy of the information. The level of proof required to be proven must be reasonable, in order to avoid imposing an excessive burden on that person. The European Court of Justice further confirmed that although the operator of the search engine must take all the rights, interests and circumstances of the case into account upon a de-referencing request being made; they cannot be expected to actively search for facts for the purposes of determining whether the request is well-founded and to obtain missing information concerning the accuracy of the content in question. Therefore, where a de-referencing request is accompanied by relevant and sufficient evidence capable of substantiating that request and capable of establishing the manifest inaccuracy of the referenced content, or by a judicial decision made against the publisher of the website concerning the referenced content, the operator of the search engine must accede to that request. On the other hand, where a de-referencing request is not accompanied by such relevant and sufficient evidence or judicial decision, the operator of the search engine is not obliged to accede to such a request.

In examining the second question, the European Court of Justice weighed the rights set out in Articles of the Processing of Personal Data Directive and the General Data Protection Regulation, against the rights referred to in the Charter. The operator of a search engine must ascertain whether displaying the photographs in question is necessary for exercising the right to freedom of information of internet users who are potentially interested in accessing those photographs by means of such a search. In weighing the data subject’s rights to respect for private life and to protection of his or her personal data against the rights to freedom of expression and information, the European Court of Justice opined that a debate of public interest is needed to determine whether a balance is being reached between these competing fundamental rights and interests. The European Court of Justice further noted that the publication of photographs is more likely to leave an impact on internet users, in comparison to text publications, as photographs are often open to several interpretations which may result in a particularly serious interference with the data subject’s right to protection of his or her image.

The European Court of Justice thus ruled that the right to protection of personal data is not an absolute right and the respective articles regulating such right must be interpreted within the context of the weighing-up exercise which is to be undertaken between the right for respect for private and family life and the right to protection of personal data as safeguarded by the Charter, on the one hand, and the right to freedom of expression and information as provided for in the Charter, on the other hand. Moreover, in an accompanying press release, the European Court of Justice held that: “The right to freedom of expression and information cannot be taken into account where, at the very least, a part – which is not of minor importance – of the information found in the referenced content proves to be inaccurate”.

Concluding remarks

In conclusion, this ruling highlights the importance of reaching a balance between competing fundamental rights and interests, these being the right to privacy and protection of personal data, and the freedom of information of internet users. In reaching this balance, one can therefore ensure that there will be minimal infringement of fundamental rights.

This article was first published in The Malta Independent (21 December 2022).