View source for OLG Frankfurt am Main - 16 U 10/22

{{COURTdecisionBOX

|Jurisdiction=Germany
|Court-BG-Color=
|Courtlogo=Courts_logo1.png
|Court_Abbrevation=OLG Frankfurt
|Court_Original_Name=Oberlandesgericht Frankfurt
|Court_English_Name=Higher Regional Court Frankfurt
|Court_With_Country=OLG Frankfurt (Germany)

|Case_Number_Name=16 U 10/22
|ECLI=ECLI:DE:OLGHE:2023:0420.16U10.22.00

|Original_Source_Name_1=OLG Frankfurt am Main
|Original_Source_Link_1=https://www.lareda.hessenrecht.hessen.de/bshe/document/LARE230004411
|Original_Source_Language_1=German
|Original_Source_Language__Code_1=DE
|Original_Source_Name_2=
|Original_Source_Link_2=
|Original_Source_Language_2=
|Original_Source_Language__Code_2=

|Date_Decided=20.04.2023
|Date_Published=
|Year=2023

|GDPR_Article_1=Article 17 GDPR
|GDPR_Article_Link_1=Article 17 GDPR
|GDPR_Article_2=
|GDPR_Article_Link_2=
|GDPR_Article_3=
|GDPR_Article_Link_3=

|EU_Law_Name_1=
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|EU_Law_Name_2=
|EU_Law_Link_2=

|National_Law_Name_1=
|National_Law_Link_1=
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|National_Law_Link_2=

|Party_Name_1=
|Party_Link_1=
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|Appeal_From_Body=
|Appeal_From_Case_Number_Name=
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|Appeal_To_Status=Not appealed
|Appeal_To_Link=

|Initial_Contributor=mg
|
}}

A German court stated that right to erasure pursuant to [[Article 17 GDPR|Article 17 GDPR]] does not apply to results automatically displayed by a search engine autofill function.

== English Summary ==

=== Facts ===
The data subject was an entrepreneur managing a worldwide chain of hotels. 

Since 2012, the data subject went through a series of insolvency proceedings. After that, when their first name and surname were entered in a Google search, the autofill system completed the search key with the word “bankrupt”. The same word was used in some of the webpages whose URLs Google indexed under the data subject’s name.

The data subject requested Google to delist some URLs linking them with the insolvency, arguing that the content of such pages did not match reality. Google refused to delist the URLs by arguing that there was a public interest in keeping that information available. Therefore, the data subject brought action against Google for violation of their right to erasure under [[Article 17 GDPR#1d|Article 17(1)(d) GDPR]]. Alongside with delisting, the data subject asked for the deletion of the word “bankrupt” in Google’s autofill function.

The court of first instance partially upheld the data subject’s claim and ordered Google to amend its autofill function. On the other hand, the court rejected all the other claims concerning URLs delisting.

Both the data subject and the controller appealed the decision.

=== Holding ===
The Supreme Regional Court of Frankfurt (''Oberlandgericht Frankfurt am Main'') rejected the data subject’s appeal.

According to the court, the legal requirements set forth in [[Article 17 GDPR]] were not met, as the controller’s freedom of information prevailed on the data subject’s right to erasure. Facts described in the URLs listed by Google, despite not accurate from a strictly legal perspective, had do be understood as expression of a subjective opinion. According to the judges, the use of the word “bankrupt” does not trigger nuanced legal considerations in the mind of the average internet user. On the contrary, it expresses both a general situation in which a certain person cannot pay their debts – which was true in the present case – and a (negative) judgement that cannot be proved or disproved. In conclusion, the data subject did not have a valid claim under [[Article 17 GDPR]], as data protection law does not provide a broad right to be depicted as one would wish.

On the other hand, the court upheld the controller’s appeal.

Concerning the autofill function, the court clarified that the controller could not rely on the original publishers’ freedom of information, but only on its own right to inform, alongside with its right to conduct a business. 

By means of a reference to the [https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2010/09/rk20100908_1bvr189008.html German Federal Consitutional Court case law], the court argued that the combination of words in Google’s autofill function is so poor of content that it falls within the category of the “slogan-like utterances”. Such a function merely connects two words – in this case, the data subject’s name and the adjective “bankrupt” – but leaves open to interpretation the relationship between the two.

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== English Machine Translation of the Decision ==
The decision below is a machine translation of the German original. Please refer to the German original for more details.

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