The recent decision of the Court of Justice of the European Union (CJEU) in the case of TU, RE v Google LLC ( EUECJ C-460/20) answered two questions referred to it by the German court regarding the delisting of results generated by search engines on the basis that they contain inaccurate information.
The carefully considered reasoning of the judges in response to these questions represents a landmark decision on this specific point, which strikes a balance between individual privacy and data protection rights and the rights to freedom of expression and information.
TU and RE were subjects of webpages and thumbnail images in Google search results against searches for their names and their names together with the names of companies with which they were involved. They sought delisting on the basis that the webpages contained inaccurate personal data. The German courts dismissed their claim.
The two questions referred to the CJEU concerned:
- How to balance the right to erasure with the rights of freedom of expression and information where links listed by search engines lead to (purportedly) inaccurate information.
- Whether the context of a webpage is conclusive to a delisting request where a thumbnail is displayed on search results.
Erasure of inaccurate personal data
The first question concerns the steps required by a search engine operator when an erasure request is made on the basis of an inaccuracy complaint. Where an erasure request is made under Article 17 GDPR, the exemptions under Article 17(3) GDPR apply, including whether processing is necessary “for exercising the right of freedom of expression and information”. It is this balancing act that the CJEU considered.
The CJEU’s answer was that a search engine operator is required to accede to a request for delisting where a data subject has been able to provide “relevant and sufficient evidence capable of substantiating his or her request” that establishes “the manifest inaccuracy of the information found in the referenced content” insofar as that inaccuracy is “not minor in relation to the content as a whole” .
However, the CJEU sought to balance that requirement, in circumstances where the “inaccuracy of such information found in the referenced content is not obvious in the light of the evidence provided by the data subject”  the search engine operator is not required to accede to the request, absent a judicial decision.
Furthermore, where the information is likely to contribute to a debate of public interest, “it is appropriate in light of all the circumstances of the case, to place particular importance of the right to freedom of expression and of information” .
In this decision, the CJEU removed any implied requirement that a data subject start complex (and inevitably costly) proceedings for defamation in respect of inaccurate information published online against content providers that they may not even be able to identify. Instead, this ruling is determinative in that a data subject can rely on their right to erasure to request that links to inaccurate information is delisted by search engines.
However, it leaves open the question of how a data subject might demonstrate the ‘manifest inaccuracy’ of the information in the links (or what threshold a search engine operator may require) in to delist the links. The CJEU stated that “the operator of the search engine concerned cannot be required to investigate the facts” themselves because “such an obligation 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.” The CJEU considered that there was “a real risk of a deterrent effect on the exercise of freedom of expression and of information” if the burden of establishing the accuracy of referenced content was placed on the operators of search engines which may then delist content “quasi-systematically” simply to protect themselves .
While this bar may end up being high, the decision is certainly going to prove to be a helpful step towards clarifying what is required by a data subject when making an erasure request.
Helpfully, the ruling also provides that where a data subject has issued defamation proceedings against a publisher, and “the existence of those proceedings has been brought to the attention of the operator of the search engine concerned”, the operator will be obligated “to add to the search results a warning concerning the existence of such proceedings.”  This obligation will at least provide data subjects with some protection in the meantime if they do decide to seek a court judgment in order to demonstrate the inaccuracy of the referenced content.
Erasure of thumbnails
The second question concerns the extent to which search engine operators should consider the context of a webpage when considering an erasure request regarding a thumbnail which was originally published on that webpage. In particular, where the webpage is linked via the thumbnail provided by the search engine operator but the title and content of the webpage is not shown with the thumbnail.
The CJEU held that the most important factor was the “informative value” of the image, and additionally whether any text displayed with the thumbnail is “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.”  The CJEU stated that a careful balancing exercise for delisting requests of images in search results is required and that the contribution to a debate of public interest is an essential factor to consider.
Furthermore, images displayed in the context of an article which “convey the information and opinions expressed therein”  will have significant informative value. Comparatively, images “when they appear solely in the form of thumbnails in the list of results displayed following a search carried out by the search engine, have little informative value.” 
Finally, the CJEU’s reasoning requires that the determination of delisting requests regarding images listed as thumbnails by search engines are separate and not dependent on delisting requests relating to links to the webpages which originally publish those images. In other words, if a delisting request to a search engine operator in relation to a link listed in search results for your name were unsuccessful, it would still be possible to seek the delisting of any thumbnail images listed by the search operator which are sourced from that webpage. Conversely, a successful delisting request in relation to a webpage would necessarily require the delisting of any such images, otherwise “the practical effect of de-referencing the article would be compromised since internet users would continue to have access to the entire article, by virtue of the link contained in the thumbnail.” 
The CJEU’s decision in TU, RE v Google LLC is a welcome development of the caselaw regarding the right to be forgotten. It provides a careful analysis of the balance to be struck between the right to be forgotten and the rights to freedom of expression and information.
Furthermore, this decision could have significant practical implications for those seeking to enforce their right to erasure. Delisting requests have historically often been rejected by Google and other search engine operators when data subjects do not have a judicial decision supporting their request. This decision may go some way towards extending the ability of data subjects to achieve delisting of content relating to them.
However, search engine operators also often rely on the argument that the content contributes to public debate and, as acknowledged by the CJEU, particular importance should be placed on the right to freedom of expression and information in such circumstances. It will be interesting to see how, practically, search engine operators assess whether an individual’s public role or a publication’s contribution to public debate is (or could ever be?) sufficiently important that the right to freedom of expression overrides the right to erasure of inaccurate material.
Persephone Bridgman Baker is a partner and Katherine Silverleaf a trainee at Carter-Ruck