TU held responsible positions in various companies providing financial services. RE was TU’s cohabiting partner, and until May 2015 held a general power of representation of one of those companies. Three articles appeared on the website g-net criticising, and expressing doubts as to the reliability of, the investment model of several of those companies, one of which featured four photographs showing TU and RE driving luxury cars, in a helicopter and in front of a charter plane, thereby suggesting that they were enjoying a life of externally financed luxury.

TU and RE issued proceedings against Google LLC seeking the removal of certain links displayed in searches of their names made using Google’s search engine that led to the g-net articles identifying TU and RE. They contended that the articles contained several incorrect allegations and defamatory opinions based on false statements. They also sought the removal of thumbnail photos of them from the list of results of an image search made on the basis of their names. That list displayed only the thumbnails with no information as to the context in which they were published on the referenced internet page.

The German Federal Court of Justice referred two questions to the CJEU. The first concerned the function of search engines and the tension between the fundamental rights set out in Articles 7, 8 and 11 of the Charter of Fundamental Rights of the EU where the data subject challenges the truth of the processed data and requests the de-referencing of links to content published by third parties in which the data appears in accordance with the GDPR. The second question concerned the necessity of taking into account the content of a web page when considering a request for the removal of thumbnails contained therein.

The CJEU observed that the right to protection of personal data is not an absolute right but must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality. Accordingly, the GDPR expressly provides that the right to erasure is excluded where processing is necessary for the exercise of the fundamental right to information.

The CJEU said that, as a general rule, a data subject’s rights to privacy and the protection of his/her personal data override the legitimate interest of internet users seeking the information in question. Assessment of that balance depends on the circumstances of each case, in particular on the nature of the information, its sensitivity and the interest of the public in having that information, an interest which can vary according to the role played by that person in public life.

However, the CJEU said, the right to freedom of expression and information should not be considered where some of the information in the referenced content, which is not of minor importance, proves to be inaccurate.

The CJEU said that it was for the person making the request for the removal of data to establish the manifest inaccuracy of the information or part of that information which is not of minor importance. However, to avoid placing an excessive burden on that person that might undermine the practical effect of the right to de-referencing, that person need only provide evidence that can reasonably be requested. They cannot, therefore, be required to produce, at the pre-litigation stage, a judicial decision against the publisher of the website in question, even a decision given in interim proceedings.

The CJEU also said that following a request for de-referencing, the operator of the search engine must take into account all the rights and interests involved and all the circumstances of the case, in order to determine whether it can continue to include the content in question in its search results. However, the operator cannot be required to play an active role in investigating facts that are not substantiated by the request for de-referencing for the purposes of determining whether the request is well-founded.

Therefore, where the person who has made a request for de-referencing submits relevant and sufficient evidence substantiating his or her request and establishing the manifest inaccuracy of the information concerned, the search engine operator must accede to that request. That is even more the case where they submit a judicial decision to that effect. By contrast, where the evidence provided by the data subject does not make the inaccuracy of the information obvious, the search engine operator is not required, in the absence of a judicial decision, to accede to the request. However, in that scenario, the data subject must be able to take the case to the supervisory or judicial authority and the search engine operator must warn internet users of the existence of proceedings concerning the alleged inaccuracy of the content insofar as it has been informed of such proceedings.

As for the thumbnails, the CJEU said that their display following a name search constitutes a particularly significant interference with that person’s rights to private life and protection of their personal data. Where a search engine operator receives a de-referencing request in relation to thumbnails, it must ascertain whether displaying those photos is necessary in respect of internet users’ right to information. In that regard, contribution to a debate of public interest is an essential factor to be taken into consideration.

The CJEU also said that a separate weighing-up exercise of competing rights and interests is required where what is at issue are articles containing photos which, when placed in their original context, illustrate the information provided in those articles and the opinions expressed in them, or the thumbnails in the list of results are displayed outside the context in which they were originally published on the web page. In respect of the latter, account must be taken of the informative value of the photos without considering the context of their publication on the original web page from which they are taken. However, any text element accompanying the thumbnails that is capable of casting light on the informative value of the photos must be taken into account. (Case C-460/20 TU v Google LLC EU:C:2022:962 (8 December 2022) — to read the judgment in full, click here).