A recent judgment by the Court of Justice of the European Union (CJEU) has introduced relevant developments where the right to be forgotten is exercised based on the inaccuracy of the information included in the referenced content.

Many people will be curious to know what information comes up when they search for their name on the Internet. However, the Spanish proverb “don’t look for what you don’t want to find” is quite right – the search results may not be to our liking or worse still, may contain inaccurate information about us. Can we do anything to make those results disappear? How can we prove that the information is inaccurate?

The reply to these questions is closely linked to the definition and scope of the so-called “right to be forgotten”, which is simply the specific  the right to erasure (applicable to search engines), that is regulated in Article 17 of the General Data Protection Regulation (GDPR).

Unlike the GDPR, Spanish Organic Law 3/2018, of December 5, 2018, on Data Protection Personal and Guarantee of Digital Rights (LOPDgdd) does regulate this right separately in its Articles 93 (right to be forgotten in online searches) and 94 (right to be forgotten on social media), giving it a certain degree of autonomy with respect to the right to erasure. This Spanish law largely reflects the case law assessment by the CJEU regarding the right to be forgotten.

The judgment handed down by the CJEU (here) last December 8 is another addition to this body of case law. Indeed, the rulings by the European Court are particularly relevant where the right to be forgotten is exercised based on the inaccuracy of the information included in the referenced content.

The decision in question was handed down in connection with a request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany), following a lawsuit between Google LLC and two executives of a group of investment companies. The applicants had asked Google to de-reference links to certain articles that criticized the investment model of the companies they worked for from the list of search results obtained based on their names, on the grounds that they contained “inaccurate claims and defamatory opinions”. They had also asked Google to remove from the list of search results the photographs representing them , in the form of thumbnails. Google refused the request, referring to the professional context of the articles and photographs at issue and arguing that it was unaware of the alleged inaccuracy of the information.

In this context, the Court of Justice is quite clear that search engines should de-reference from search results links that lead to content that includes factual claims that are manifestly inaccurate.

The CJEU argued that pursuant to the GDPR, in order to assess whether a request for the right to be forgotten should be addressed, it is necessary to weigh up the right to respect for private life and to protection of personal data on the one hand, and the right of freedom of expression and information on the other. However, where at least part of the information (which is not minor in relation to the content as a whole) is inaccurate, the right to inform and the right to be informed cannot be taken into account because they do not protect the right to disseminate and have access to such information.

If the truth be told, this is not new. In the now well-known Costeja judgment of May 13, 2014 (here), the CJEU held that search engines should remove links where the information included in those links is inaccurate. However, what is new is that the European court has expressly addressed the issue of the burden of proof of the inaccuracy of the information, answering the following key questions in this regard:

  1. Can the person requesting de-referencing be required to submit a judicial decision made against the publisher of the website that hosts the content in order to evidence the inaccuracy of the information? In the Court’s opinion, this would impose an unreasonable burden.
  2. Therefore, is it sufficient for the person requesting de-referencing to argue that they consider that the information is inaccurate, in order for the search engine to be under the obligation to fulfill the request? The burden of proving the inaccuracy lies with the person requesting de-referencing. In this regard, the person requesting de-referencing may be required “to provide only evidence that, in the light of the circumstances of the particular case, can reasonably be required of him or her to try to find in order to establish that manifest inaccuracy”.
  3. Can the operator of the search engine be required to take steps to clarify the facts itself in order to establish whether the information is or is not accurate? The operator of the search engine cannot be required to investigate the facts or try to obtain missing information to determine whether the information is or is not accurate. On the contrary. According to the CJEU, it “would impose on that operator a burden in excess of what can reasonably be expected of it in the light of its responsibilities, powers and capabilities”. Moreover, the court warns that an obligation such as this would involve the risk that content meeting the public’s legitimate and compelling need for information would be de-referenced. Search engines could decide to systematically de-reference links in order to avoid having to bear the burden of investigating the facts for the purpose of establishing whether or not the information was accurate.

In a nutshell, the operator of the search engine should re-reference links when the person who has made a request for de-referencing submits relevant and sufficient evidence of the inaccuracy of the information in question. By contrast, where the inaccuracy of such information is not obvious, in the light of the evidence provided by the person making the request, the search engine is not required, where there is no such judicial decision, to accede to such a request.

Consequently, if when we search for our name, the search engine displays inaccurate information, we will have to compile the relevant evidence to be able to say “forget my name, my face, my data… and de-reference”.

Ángela López

Garrigues IP Department