According to a 2014 ruling by the Court of Justice of the European Union (ECJ), Europeans enjoy the right to be forgotten. This right makes it possible to ask Google and other search engines to remove links from the results when it comes to queries about the candidate’s name. The search engine grants or rejects these requests, taking into account several parameters, including the right of access.
As a result, the right to be forgotten was reinforced by the right to erasure under the GDPR. And today its scope is extended by a new ruling by the ECJ. This new ruling concerns the removal of inaccurate content displayed on search engines.
A dispute at the origin of this judgment
It was the German Federal Court of Justice that asked the Court of Justice of the EU to interpret the GDPR after a dispute between two managers of investment companies and Google. These two people asked the search engine to dereference Google results from their names, which criticize the group.
In fact, according to the two company directors, the links affected by the request contain inaccurate information. They also requested the removal of thumbnails of their photos from their names’ search results.
Google has not honored these requests due to the professional context of this information. Also, the search engine states that it doesn’t know if the information in the articles is wrong or not.
The right to erasure of inaccurate information
In its judgment, the ECJ points out that the right to erasure is excluded if “The processing (in this case the display of information in the search engine) is necessary for the exercise of the right to freedom of information.”
“However, the right to freedom of expression and information cannot be taken into account if at least a not inconsiderable part of the information contained in the referenced content proves to be incorrect.”the Court nevertheless adds in its press release.
In essence, if a link displayed in a search engine like Google contains incorrect information, it is no longer protected by the right of access. And the right to be forgotten or erased is exercised.
— EU Court of Justice (@CourUEPresse) December 8, 2022
You have to prove that the information is wrong
According to the CJEU’s statement, when asking Google to remove a search result on the grounds that it contains inaccurate information, it is for the applicant to “prove the manifest inaccuracy of the information or part of it that is of minor importance.” In other words, you must provide solid evidence.
This proof is sufficient to submit the application. And a court decision against the publisher of the site is not required.
“In the event that the applicant for delisting submits relevant and sufficient evidence capable of supporting his request and demonstrating the manifest inaccuracy of the information contained in the referenced content, the operator of the search engine is therefore obliged to grant this request.”, says the ECJ. In other words, Google must accept the dereferencing request if there is sufficient evidence that the information is incorrect.
With regard to vignettes, the ECJ’s answer is less clear. ” […] The Court concludes that it is necessary to take into account their informational value without considering the context of their publication on the website from which they originate.”points to this.
Google took note
The ECJ judgment does not end the dispute between Google and the two CEOs. Taking this decision into account, it is up to the German courts to clarify it. But as the ECJ notes, its decision is binding on other national courts. Therefore, in the event of a similar dispute, the judiciary of a European country will rely on this new judgment of the Court of Justice of the EU.
Google, for its part, has already welcomed the ECJ’s decision and has announced that it will analyze it. “The links and thumbnails in question are no longer available through web search and image search; the content in question was offline for a long time”a Google representative said, according to Politico.