Case C‑460/20
TU and RE
v
Google LLC
(Request for a preliminary ruling from the Bundesgerichtshof)
Judgment of the Court (Grand Chamber), 8 December 2022
(Reference for a preliminary ruling – Protection of natural persons with regard to the processing of personal data – Directive 95/46/EC – Article 12(b) – Point (a) of the first paragraph of Article 14 – Regulation (EU) 2016/679 – Article 17(3)(a) – Operator of an internet search engine – Research carried out on the basis of a person’s name – Displaying a link to articles containing allegedly inaccurate information in the list of search results – Displaying, in the form of thumbnails, photographs illustrating those articles in the list of results of an image search – Request for de-referencing made to the operator of the search engine – Weighing-up of fundamental rights – Articles 7, 8, 11 and 16 of the Charter of Fundamental Rights of the European Union – Obligations and responsibilities of the operator of the search engine in respect of processing a request for de-referencing – Burden of proof on the person requesting de-referencing)
1. Approximation of laws – Protection of natural persons with regard to the processing of personal data – Directive 95/46 – Regulation 2016/679 – Processing of personal data – Concept – Activity of a search engine – Finding, indexing, storing and making available to internet users information published or placed on the internet by third parties – Included – Controller – Concept – Operator of a search engine – Included
(Regulation of the European Parliament and of the Council 2016/679, Art. 4(1), (2) and (7); European Parliament and Council Directive 95/46, Art. 2(b) and (d))
(see paragraphs 44, 49, 50, 91)
2. Approximation of laws – Protection of natural persons with regard to the processing of personal data – Regulation 2016/679 – Respect for fundamental rights – Rights to respect for private life and to protection of personal data – Request for de-referencing addressed to the operator of a search engine – Striking a balance with the right to freedom of expression and information when processing that request
(Charter of Fundamental Rights of the European Union, Arts. 7, 8 and 11; Regulation of the European Parliament and of the Council 2016/679; European Parliament and Council Directive 95/46)
(see paragraphs 51-56, 58)
3. Approximation of laws – Protection of natural persons with regard to the processing of personal data – Regulation 2016/679 – List of results of a search carried out using a search engine on the basis of a person’s name – Display of a link to articles containing allegedly inaccurate information – Request for de-referencing addressed to the operator of that search engine – Striking a balance between fundamental rights when processing that request – Relevant criteria – Establishing the accuracy of the information found in the referenced content – Included – Burden of proof on the person requesting de-referencing – Scope – Obligations and responsibilities of the operating of the search engine when processing such a request for de-referencing – Scope – Relevant and sufficient evidence – Included – Need for the question of the accuracy of the referenced content to have been resolved, at least provisionally – None
(Charter of Fundamental Rights of the European Union, Arts. 7, 8 and 11; European Parliament and Council Regulation 2016/679, Art. 17(3)(a))
(see paragraphs 62-65, 68-73, 75-77, operative part 1)
4. Approximation of laws – Protection of natural persons with regard to the processing of personal data – Directive 95/46 – Regulation 2016/679 – Scope ratione temporis – Concomitant interpretation of provisions having a similar purport
(European Parliament and Council Regulation 2016/679; European Parliament and Council Regulation 95/46)
(see paragraphs 78-80)
5. Approximation of laws – Protection of natural persons with regard to the processing of personal data – Directive 95/46 – Regulation 2016/679 – List of results of a search carried out using a search engine on the basis of a person’s name – Display, in the form of thumbnails, of photographs representing that person – Request for de-referencing to the operator of the search engine – Striking a balance between fundamental rights when processing that request – Relevant criteria – Taking account of the informative value of the photographs regardless of the context of their original publication and of the text elements which accompany their display and are capable of clarifying that value – Included
(Charter of Fundamental Rights of the European Union, Arts. 7, 8 and 11; European Parliament and Council Regulation 2016/679, Art. 17(3)(a); European Parliament and Council Directive 95/46, Art. 12(b),and point (a) of first paragraph of Art. 14)
(see paragraphs 90, 93, 94, 96, 98, 100-105, 108, operative part 2)
Résumé
The applicants in the main proceedings, TU, who occupies leadership positions and holds shares in various companies, and RE, who was his cohabiting partner and, until May 2015, held general commercial power of representation in one of those companies, were the subject of three articles published on a website in 2015 by G-LLC, the operator of that website. Those articles, one of which was illustrated by four photographs of the applicants and suggested that they led a life of luxury, criticised the investment model of a number of their companies. It was possible to access those articles by entering into the search engine operated by Google LLC (‘Google’) the surnames and forenames of the applicants, both on their own and in conjunction with certain company names. The list of results provided a link to those articles and to photographs in the form of thumbnails.
The applicants in the main proceedings requested Google, as the controller of personal data processed by its search engine, first, to de-reference the links to the articles at issue from the list of search results, on the ground that they contained inaccurate claims and defamatory opinions, and, second, to remove the thumbnails from the list of search results. Google refused to accede to that request.
Since they were unsuccessful at first instance and on appeal, the applicants in the main proceedings brought an appeal on a point of law before the Bundesgerichtshof (Federal Court of Justice, Germany), in the context of which the Bundesgerichtshof (Federal Court of Justice) made a request to the Court of Justice for a preliminary ruling on the interpretation of the GDPR (1) and Directive 95/46. (2)
By its judgment, delivered by the Grand Chamber, the Court develops its case-law on the conditions which apply to requests for de-referencing addressed to the operator of a search engine based on rules regarding the protection of personal data. (3) It examines, in particular, first, the extent of the obligations and responsibilities incumbent on the operator of a search engine in processing a request for de-referencing based on the alleged inaccuracy of the information in the referenced content and, second, the burden of proof imposed on the data subject as regards that inaccuracy. The Court also gives a ruling on the need, for the purposes of examining a request to remove photographs displayed in the form of thumbnails in the list of results of an image search, to take account of the original context of the publication of those photographs on the internet.
Findings of the Court
In the first place, the Court rules that, in the context of striking a balance between, on the one hand, the right to respect for private life and the protection of personal data, and on the other hand, the right to freedom of expression and information, (4) for the purposes of examining a request for de-referencing made to the operator of a search engine seeking the removal from the list of search results of a link to content containing allegedly inaccurate information, such de-referencing is not subject to the condition that the question of the accuracy of the referenced content has been resolved, at least provisionally, in an action brought by the person making that request against the content provider.
As a preliminary point, in order to examine the conditions in which the operator of a search engine is required to accede to a request for de-referencing and thus to remove from the list of results displayed following a search on the basis of the data subject’s name, the link to an internet page on which allegations appear which that person regards as inaccurate, the Court stated, in particular, as follows:
• inasmuch as the activity of a search engine is liable to affect significantly, and additionally compared with that of the publishers of websites, the fundamental rights to privacy and to the protection of personal data, the operator of that search engine, as the person determining the purposes and means of that activity must ensure, within the framework of its responsibilities, powers and capabilities, that the guarantees laid down by Directive 95/46 and the GDPR may have full effect and that effective and complete protection of data subjects may actually be achieved;
• where the operator of a search engine receives a request for de-referencing, it must ascertain whether the inclusion of the link to the internet page in question in the list of results is necessary for exercising the right to freedom of information of internet users potentially interested in accessing that internet page by means of such a search, a right protected by the right to freedom of expression and of information;
• the GDPR expressly lays down the requirement to strike a balance between the fundamental rights to privacy and protection of personal data, on the one hand, and the fundamental right of freedom of information on the other.
First of all, the Court finds that while the data subject’s rights to respect for private life and the protection of personal data override, as a general rule, the legitimate interest of internet users who may be interested in accessing the information in question, that balance may, however, depend on the relevant circumstances of each case, in particular on the nature of that information and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.
The question of whether or not the referenced content is accurate also constitutes a relevant factor when making that assessment. Accordingly, in certain circumstances, the right of internet users to information and the content provider’s freedom of expression may override the rights to private life and to protection of personal data, in particular where the data subject plays a role in public life. However, that relationship is reversed where, at the very least, a part – which is not minor in relation to the content as a whole – of the information referred to in the request for de-referencing proves to be inaccurate. In such a situation, the right to inform and the right to be informed cannot be taken into account, since they cannot include the right to disseminate and have access to such information.
Next, as regards, first, the obligations relating to establishing whether or not the information found in the referenced content is accurate, the Court clarifies that the person requesting the de-referencing on account of the inaccuracy of such information is required to establish the manifest inaccuracy of such information or, at the very least, of a part – which is not minor in relation to the content as a whole – of that information. However, in order to avoid imposing on that person an excessive burden which is liable to undermine the practical effect of the right to de-referencing, that person has 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 principle, that person cannot be required to produce, as from the pre-litigation stage, in support of his or her request for de-referencing, a judicial decision made against the publisher of the website, even in the form of a decision given in interim proceedings.
Second, as regards the obligations and responsibilities imposed on the operator of the search engine, the Court points out that the operator of a search engine must, in order to determine whether content may continue to be included in the list of search results carried out using its search engine following a request for de-referencing, take into account all the rights and interests involved and all the circumstances of the case. However, that operator cannot be obliged to investigate the facts and, to that end, to organise an adversarial debate with the content provider seeking to obtain missing information concerning the accuracy of the referenced content. An obligation to contribute to establishing whether or not the referenced content is accurate 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. That solution would entail a serious risk that content meeting the public’s legitimate and compelling need for information would be de-referenced and would thereby become difficult to find on the internet. There would, accordingly, be a real risk of a deterrent effect on the exercise of freedom of expression and of information if such an operator undertook such de-referencing quasi-systematically, in order to avoid having to bear the burden of investigating the relevant facts for the purpose of establishing whether or not the referenced content was accurate.
Therefore, where the person who has made a request for de-referencing submits evidence establishing the manifest inaccuracy of the information found in the referenced content or, at the very least, of a part – which is not minor in relation to the content as a whole – of that information, the operator of the search engine is required to accede to that request. The same applies where the person making that request submits a judicial decision made against the publisher of the website, which is based on the finding that information found in the referenced content – which is not minor in relation to that content as a whole – is, at least prima facie, inaccurate. 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 operator of the search engine is not required, where there is no such judicial decision, to accede to such a request for de-referencing. Where the information in question is likely to contribute to a debate of public interest, it is appropriate, in the light of all the circumstances of the case, to place particular importance on the right to freedom of expression and of information.
Lastly, the Court adds that, where the operator of a search engine does not grant a request for de-referencing, the data subject must be able to bring the matter before the supervisory authority or the judicial authority so that it carries out the necessary checks and orders that controller to adopt the necessary measures. In that regard, the judicial authorities must ensure a balance is struck between competing interests, since they are best placed to carry out a complex and detailed balancing exercise, which takes account of all the criteria and all the factors established by the relevant case-law.
In the second place, the Court rules that, within the context of weighing up fundamental rights mentioned above, for the purposes of examining a request for de-referencing seeking the removal from the results of an image search carried out on the basis of the name of a natural person of photographs displayed in the form of thumbnails representing that person, account must be taken of the informative value of those photographs regardless of the original context of their publication on the internet page from which they are taken. However, it is necessary to take into consideration any text element which accompanies directly the display of those photographs in the search results and which is capable of casting light on the informative value of those photographs.
In reaching that conclusion, the Court notes that image searches carried out by means of an internet search engine on the basis of a person’s name are subject to the same principles as those which apply to internet page searches and the information contained in them. It states that displaying, following a search by name, photographs of the data subject in the form of thumbnails, is such as to constitute a particularly significant interference with the data subject’s rights to private life and that person’s personal data.
Consequently, when the operator of a search engine receives a request for de-referencing which seeks the removal, from the results of an image search carried out on the basis of the name of a person, of photographs displayed in the form of thumbnails representing that person, it must ascertain whether displaying the photographs in question is necessary for exercising the right to freedom of information of internet users who are potentially interested in accessing those photographs by means of such a search.
In so far as the search engine displays photographs of the data subject outside the context in which they are published on the referenced internet page, most often in order to illustrate the text elements contained in that page, it is necessary to establish whether that context must nevertheless be taken into consideration when striking a balance between the competing rights and interests. In that context, the question whether that assessment must also include the content of the internet page containing the photograph displayed in the form of a thumbnail, the removal of which is sought, depends on the purpose and nature of the processing at issue.
As regards, first, the purpose of the processing at issue, the Court notes that the publication of photographs as a non-verbal means of communication is likely to have a stronger impact on internet users than text publications. Photographs are, as such, an important means of attracting internet users’ attention and may encourage an interest in accessing the articles they illustrate. Since, in particular, photographs are often open to a number of interpretations, displaying them in the list of search results as thumbnails may result in a particularly serious interference with the data subject’s right to protection of his or her image, which must be taken into account when weighing-up competing rights and interests. A separate weighing-up exercise is required depending on whether the case concerns, on the one hand, articles containing photographs which are published on an internet page and which, when placed into their original context, illustrate the information provided in those articles and the opinions expressed in them, or, on the other hand, photographs displayed in the list of results in the form of thumbnails by the operator of a search engine outside the context in which they were published on the original internet page.
In that regard, the Court recalls that not only does the ground justifying the publication of a piece of personal data on a website not necessarily coincide with that which is applicable to the activity of search engines, but also, even where that is the case, the outcome of the weighing-up of the rights and interests at issue may differ according to whether the processing carried out by the operator of a search engine or that carried out by the publisher of that internet page is at issue. The legitimate interests justifying such processing may be different and, also, the consequences of the processing for the data subject, and in particular for his or her private life, are not necessarily the same. (5)
As regards second, the nature of the processing carried out by the operator of the search engine, the Court observes that, by retrieving the photographs of natural persons published on the internet and displaying them separately, in the results of an image search, in the form of thumbnails, the operator of a search engine offers a service in which it carries out autonomous processing of personal data which is distinct both from that of the publisher of the internet page from which the photographs are taken and from that, for which the operator is also responsible, of referencing that page.
Therefore, an autonomous assessment of the activity of the operator of the search engine, which consists of displaying results of an image search, in the form of thumbnails, is necessary, as the additional interference with fundamental rights resulting from such activity may be particularly intense owing to the aggregation, in a search by name, of all information concerning the data subject which is found on the internet. In the context of that autonomous assessment, account must be taken of the fact that that display constitutes, in itself, the result sought by the internet user, regardless of his or her subsequent decision to access the original internet page or not.
The Court observes, however, that such a specific weighing-up exercise, which takes account of the autonomous nature of the data processing performed by the operator of the search engine, is without prejudice to the possible relevance of text elements which may directly accompany the display of a photograph in the list of search results, since such elements are capable of casting light on the informative value of that photograph for the public and, consequently, of influencing the weighing-up of the rights and interests involved.