The right to erasure, or right to be forgotten, was clarified by the highest European court in a judgment communicated on Thursday, December 8, 2022. The Court of Justice of the European Union (CJEU) had been seized by the German justice in order to interpret the GDPR (European Regulation on the protection of personal data) in the matter.
A proof “manifest” of the requested inaccuracy
The case involved two executives of a group of investment companies who had asked Google to delist several links identified after a search on their name. However, the offending sites “critically present the investment model of this group”, explains the CJEU. The complainants also wanted Google to remove thumbnail photos (thumbnails) from search results, but Google had refused their request, the firm justifying that it did not know whether the information contained on the offending sites was accurate or not.
How to judge the balance between the right to be forgotten and the right to freedom of expression and information? Seized, the German Federal Court of Justice had asked the CJEU to rule. “The search engine operator must dereference information contained in the referenced content when the applicant proves that it is manifestly inaccurate”, therefore judges the European court. That said, the evidence demonstrating the inaccuracy “manifest”, partial or complete, of the information presented must be provided by the complainant. If the latter is admissible, “the operator of the search engine is obliged to comply with this request”decides the CJEU.
A difficult balance with freedom of information
“He [le plaignant, NDLR] it is only incumbent on him to provide such evidence as he may reasonably be required to seek”, specifies the jurisdiction. The elements to be provided do not have to come from a judicial decision. In other words, for a site to be dereferenced from a Google search, the plaintiff must himself demonstrate the non-veracity of the information presented on the offending page. Google can therefore refuse to remove a page from its index if the applicant has not supported by manifest facts the inaccuracy of the information.
A common sense request to avoid an obstacle to the right to information of Internet users. “The right to the protection of personal data is not an absolute right, but must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality. Thus, the General Data Protection Regulation expressly provides that the right to erasure is excluded when the processing is necessary for the exercise of the right relating, in particular, to freedom of information.recalls the Court in its press release.
“Since 2014, we have worked hard to implement the right to be forgotten in Europe, and to strike a reasonable balance between people’s rights to access information and privacy”, responded a Google spokesperson quoted by Reuters. The decision of the Court of Justice of the European Union reinforces the right to be forgotten by interpreting the rules of the GDPR with more precision.