EU: CJEU holds search engines must delete search results when manifestly inaccurate
The Court of Justice of the European Union ('CJEU') announced, on 8 December 2022, that it had issued, on the same day, its judgment in Case C‑460/20 TU, RE v Google LLC, following a request for preliminary ruling by the German Federal Court of Justice ('the Federal Court'), concerning the right to erasure under Article 17 of the General Data Protection Regulation (Regulation (EU) 2016/679) ('GDPR'). In particular, the CJEU explained that, in the case before the Federal Court, two managers of a group of investment companies had requested Google to de-reference results of a search made on the basis of their names, which provided links to certain articles criticising the group's investment model, and to remove some photos of them, displayed in the form of thumbnails. Subsequently, the CJEU reported, Google had refused to comply with the requests, arguing that it was unaware whether the information contained in those articles was accurate or not.
Further to the above, the CJEU reasoned that, while the right to the protection of personal data is not absolute and must be balanced against other fundamental rights on a case-by-case basis, the right to freedom of expression and information cannot be taken into account where a part of not minor importance of the information found in the referenced content proves to be inaccurate. More specifically, the CJEU held that the burden of proving the manifest inaccuracy of the information lies with the person requesting de-referencing. However, the CJEU took the view that, where the person who has made a request for de-referencing submits relevant and sufficient evidence, the operator of the search engine is required to accede to that request.
In regard to the thumbnails, the CJEU held that, in the weighing-up exercise concerning photos displayed in the form of thumbnails, account must be taken of the informative value of those photos, without taking into consideration the context of their publication on the internet page from which they are taken.