The Court of Justice of the European Union (“CJEU”) ruled on this obligation in Case C-460/20 | Google (hereinafter “the Judgment”). The judgment builds on the existing regulation on the protection of personal data by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (hereinafter “GDPR”).

The state of facts

Two executives of a group of investment companies asked Google to remove links to certain articles critical of their investment model and their personality from search results based on their names on the grounds that the articles contained false information and were defamatory.

The plaintiffs also requested that Google not display their photos from these articles in image searches called “thumbnails”.

Google referred to the professional context of the articles and noted that it was unaware of the alleged falsity of the articles and therefore refused to comply with the request.

Protection from false information

The data subject (natural person) has the right to have links to articles containing false information removed. Although the right to freedom of expression and information may in some cases override the right to protection of personal data, especially if the person concerned is a public figure, protection is always provided in the case of false information.

The person requesting the removal of a link is obliged to prove the manifest falsity of the information contained in the article in question, or at least the falsity of some of that information, which is not incidental to the content as a whole. However, the applicant does not need to provide a court decision or an interim measure. However, the operator of a search engine is not obliged to search for information proving that the information is manifestly false.

In the event of a legitimate and duly justified request for the removal of links (to data), the search engine operator is obliged to remove the link to an article that contains false claims from the search results.

The search engine operator must notify users in the search results of any pending administrative or judicial proceedings, in which the authenticity of an article is disputed.

Protection of likeness

Given that a photograph depicts the likeness of a person and may contain personal or intimate information, the CJEU considers that the protection of these personal data should be given special importance.

However, freedom of expression and information includes the right to publish photographs, so the two rights must always be compared.

When comparing these two rights, the information value of the given photograph is crucial. However, the informational value of a separately displayed photograph is assessed only in relation to the photograph itself (or the accompanying commentary) and not the article, from which the photograph comes.

If the information value of the photograph is low, the right to data protection outweighs the right to freedom of expression and information.

In this case, it is possible to request that the search engine remove the photo from the search result.

Conclusion

According to the new CJEU case law, it is possible to ask directly the operator of an internet search engine to remove links to websites containing articles, if these articles contain false information, even without a judgment or interim measure; it is sufficient to prove the manifest falsity of certain information in the article.

You can also request that photos be removed from image search results (“thumbnails”), if they are displayed out of context, without additional information, and thus have little informational value.

Author: Veronika Odrobinová, Petr Berdych