One of the fundamental rights conferred by the General Data Protection Regulation (GDPR) is the right to erasure, better known as the “right to be forgotten”. This right allows individuals to request the data controller to erase their personal data. The controller may refuse only in strictly defined cases, for example where the right to information or the right to privacy must be protected.

The role of search engines in the dissemination of information

Internet search engines play an important role in the dissemination of information by aggregating and presenting publicly available data about a given person. This function allows users to easily access articles or content that might otherwise remain hidden.

Although search engines are not liable for the truthfulness of the content published on the sites to which they provide links, they facilitate the wide dissemination of that content. Where such content contains false or defamatory information, it may seriously affect the personal or professional life of the person concerned. The “right to be forgotten” serves as a protective mechanism in such cases.

The case before the Court of Justice of the EU

The Court of Justice of the European Union examined a case in which two company managers submitted a request to Google for the removal of links to articles which, in their view, contained defamatory and false statements. Google refused to grant that request, which led to the case being examined by the Court of Justice of the EU (Case C‑460/20).

In its judgment, the Court of Justice of the EU held that an internet search engine is obliged to verify whether the inclusion of links to the web page in question is necessary for the exercise of internet users’ right to information. This requires a balance to be struck between the right to privacy and the right to freedom of expression and information.

Criteria for weighing the rights

In order to achieve this balance, the Court emphasises that a number of factors must be taken into account, including:

  • whether the content contributes to a debate of public interest;
  • whether the person to whom the content relates is a public figure;
  • the form and context of the published information, as well as the manner in which it was obtained;
  • whether the information is reliable and what its resonance is in society.

Proving the falsity of the content

According to the Court’s judgment, the person requesting the removal of the links must provide evidence that the information included is manifestly inaccurate and not of minor importance in the context of the content as a whole.

This does not, however, mean that the person must provide a court judgment or a conviction handed down against the publisher of the site concerned. The Court accepts that it is sufficient to provide evidence that can reasonably be required in order to establish the manifest inaccuracy.

Obligations of search engines

Internet search engines are not obliged to carry out investigations or to gather evidence of the truthfulness of the content to which they refer. If the person provides sufficient evidence establishing the falsity of the information, the search engine is obliged to remove the links.

Where the evidence is not sufficient, the search engine is entitled to refuse the removal.

Limitations on the removal of links

Not all links containing false statements are subject to removal. The Court emphasises that:

  • minor errors or data that are not essential to the content as a whole are not grounds for the removal of links;
  • the search engine is obliged to remove links only if the false information is significant to the content.

Removal of images from search results

In the case of a request for the removal of images (thumbnails), the Court accepts that the informative value of the images must be taken into account. In this context, not only the image itself is considered, but also the accompanying text, which may provide additional information.

If you need advice or the drafting of documents in connection with the protection of personal data, contact us on 0887550706 or by e-mail: [email protected]