CJEU - C-460/20 - TU, RE v Google: Difference between revisions

Latest revision as of 15:27, 12 May 2023

CJEU - C-460/20 TU, RE v Google

Court:	CJEU
Jurisdiction:	European Union
Relevant Law:	Article 11 CFREU Article 7 CFREU Article 8 CFREU Article 16 CFREU
Decided:
Parties:	TU and others Google LLC
Case Number/Name:	C-460/20 TU, RE v Google
European Case Law Identifier:
Reference from:	BGH (Germany)
Language:	24 EU Languages
Original Source:	Judgement
Initial Contributor:	n/a

The CJEU clarified the scope of de-referencing under Article 17(3)(a) GDPR.

English Summary

Facts

TU and RE were directors and shareholders of investment companies. Three articles were published in the news criticizing their companies and showing pictures of TU and RE suggesting a luxury lifestyle. These articles were accessible upon research of their names in Google.

TU and RE requested Google, as controller to de-reference the links to the articles from the list of search results when researching their names. Google refused to comply with this request. TU and RE therefore brought an action with the Landgericht Köln (Regional Court Cologne) to have the Court order Google to de-reference. They argued among other things that the articles contained inaccurate claims and defamatory opinions.

After the dismissal of their action in first instance, TU and RE filed an appeal with the Oberlandesgericht Köln (Higher Regional Court Cologne). This appeal was also dismissed. TU and RE appealed this second decision with the Bundesgerichtshof (Federal Court) which referred two questions to the CJEU. Oskar J. Gstrein^[1] summarized these questions as follows :

"How should courts handle requests for de-referencing in cases where applicants claim that the information presented by a news outlet are inaccurate, and in which the legality of the publication depends on whether the claims are factually true?
Is there an obligation of search engine providers such as Google to delete thumbnails from search engine results, even if the results contain a link to the original source?"

Holding

For the first question, the Court explained that the processing by the search engine (in this case Google) constitutes a processing of personal data and must be distinguished from the publication on the website. The Court then recalled that the right to data protection is not absolute and must be balanced with the right to freedom of expression. In this context, the Court held that it is to the person requesting de-referencing to establish the manifest inaccuracy of the information. The search engine cannot be required to assess the accuracy of the information published in order to handle a request on the basis of Article 17(3)(a) GDPR. The Court concluded that "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 that person against the content provider.".

For the second question, the Court held a similar reasoning. It considered that search engines must operate an assessment when displaying and using images and take into account the informative value of such images.

Comment

It is interesting to note that thumbnails and photographs can be object to a de-referencing request.

Further Resources

Share blogs or news articles here!

↑ The Right to be Forgotten in 2022, 20 December 2022, available on https://verfassungsblog.de/rtbf-2022/

[1] The Right to be Forgotten in 2022, 20 December 2022, available on https://verfassungsblog.de/rtbf-2022/

[1]

@@ Line 39: / Line 39: @@
 }}
-See Holding for questions referred.
+The CJEU clarified the scope of de-referencing under [[Article 17 GDPR|Article 17(3)(a) GDPR.]]
 ==English Summary==
 === Facts ===
-Facts pending decision.
+TU and RE were directors and shareholders of investment companies. Three articles were published in the news criticizing their companies and showing pictures of TU and RE suggesting a luxury lifestyle. These articles were accessible upon research of their names in Google.
+TU and RE requested Google, as controller to de-reference the links to the articles from the list of search results when researching their names. Google refused to comply with this request. TU and RE therefore brought an action with the Landgericht Köln (Regional Court Cologne) to have the Court order Google to de-reference. They argued among other things that the articles contained inaccurate claims and defamatory opinions.
+After the dismissal of their action in first instance, TU and RE filed an appeal with the Oberlandesgericht Köln (Higher Regional Court Cologne). This appeal was also dismissed. TU and RE appealed this second decision with the Bundesgerichtshof (Federal Court)  which referred two questions to the CJEU. Oskar J. Gstrein<ref>The Right to be Forgotten in 2022, 20 December 2022, available on https://verfassungsblog.de/rtbf-2022/</ref> summarized these questions as follows :
+# "How should courts handle requests for de-referencing in cases where applicants claim that the information presented by a news outlet are inaccurate, and in which the legality of the publication depends on whether the claims are factually true?
+# Is there an obligation of search engine providers such as Google to delete thumbnails from search engine results, even if the results contain a link to the original source?"
 === Holding ===
-'''Questions referred:'''
+For the first question, the Court explained that the processing by the search engine (in this case Google) constitutes a processing of personal data and must be distinguished from the publication on the website. The Court then recalled that the right to data protection is not absolute and must be balanced with the right to freedom of expression. In this context, the Court held that it is to the person requesting de-referencing to establish the manifest inaccuracy of the information. The search engine cannot be required to assess the accuracy of the information published in order to handle a request on the basis of [https://gdprhub.eu/Article%2017%20GDPR Article 17(3)(a) GDPR]. The Court concluded that "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 that person against the content provider.".
-'''1.''' Is it compatible with the data subject’s right to respect for private life and to protection of personal data, if, within the context of the weighing-up of conflicting rights and interests arising from Articles 7, 8, 11 and 16 of the Charter, within the scope of the examination of his request for de-referencing brought against the data controller of an internet search engine, pursuant to Article 17(3)(a) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (GDPR), when the link, the de-referencing of which the applicant is requesting, leads to content that includes factual claims and value judgements based on factual claims the truth of which is denied by the data subject, and the lawfulness of which depends on the question of the extent to which the factual claims contained in that content are true, the national court also concentrates conclusively on the issue of whether the data subject could reasonably seek legal protection against the content provider, for instance by means of interim relief, and thus at least provisional clarification on the question of the truth of the content displayed by the search engine data controller could be provided?
-'''2.''' In the case of a request for de-referencing made against the data controller of an internet search engine, which in a name search searches for photos of natural persons which third parties have introduced into the internet in connection with the person’s name, and which displays the photos which it has found in its search results as preview images (thumbnails), within the context of the weighing-up of the conflicting rights and interests arising from Articles 7, 8, 11 and 16 of the Charter pursuant to Article 12(b) and Article 14(1)(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Data Protection Directive)/Article 17(3)(a) of the GDPR, should the context of the original third-party publication be conclusively taken into account, even if the third-party website is linked by the search engine when the preview image is displayed but is not specifically named, and the resulting context is not shown with it by the internet search engine?
+For the second question, the Court held a similar reasoning. It considered that search engines must operate an assessment when displaying and using images and take into account the informative value  of such images.
 == Comment ==
-''Share your comments here!''
+It is interesting to note that thumbnails and photographs can be object to a de-referencing request.
 == Further Resources ==
 ''Share blogs or news articles here!''