Online search engine operators (‘search engines’) are often faced with individuals (applicants) requesting that an online negative publication or review about them no longer be indexed (linked) in the engine operator’s search results. In doing so, it is often argued that that negative publication or review would contain inaccurate or false information. For example, a restaurant owner does not recognize himself in a review published online. He could also turn to the publicist, but chooses to request the search engine to make stop indexing the review in the search results.
But when this is the case, who has to prove whether there is indeed false information? That discussion can only be conducted substantively between the publicist and the applicant. After all, the search engine only indexes the information in question, and thus cannot assess this.
On the question to what extent the applicant bears the burden of proof of the claim that the review contains incorrect information, and on the responsibilities of the search engine in this context, the Court of Justice of the EU (‘the Court’) recently made an interesting ruling.
Balancing the right to freedom of expression and information and the right to privacy
The Court considered that a search engine must examine whether the inclusion of the link to the website in question, is necessary for the exercise of the right to freedom of expression. Relevant points of view in this assessment are, amongst other things, whether the information on the website contributes to the public debate, whether the information is about a public figure, the subject, the content, form and consequences of the publication, but also how the information was obtained and whether the information is (predominantly) correct.
In this regard, the right to freedom of expression and the right to information of internet users who wish to consult the information take precedence in principle. The right to privacy weighs more heavily in any case if (a significant part of) the information to which the request for removal of the search engine links relates is incorrect. Indeed, incorrect information is not covered by the right to freedom of expression and information.
The question whether the information is ‘correct’ can be quite tricky. According to (established case law of) the Court, a distinction must in any case be made between value judgments and facts. Only with facts can it be demonstrated whether they are correct or not. Value judgments cannot (and need not) be proven.
Burden of proof
The Court concludes that the applicant who requests removal and thereby takes the position that the information is incorrect must in principle prove this, but immediately brings in a nuance here. The applicant only has to provide the evidence that, given the circumstances of the case, can reasonably be required of him. The applicant can for example not be expected to provide a court judgment against the initial publicist, as that would be an unreasonable burden on the applicant.
Rights and obligations of the search engine
But what then are the obligations of the online search engine in this context? The search engine in turn, must consider all relevant rights and circumstances of the concrete case when assessing the removal request.
The operator cannot be required to actively seek out facts about the accuracy of the content of the initial publication that do not arise from the removal request.
Nor can the operator be required to engage in a dialogue with the publicist to obtain information about the accuracy of the linked content. This would place a too great burden on the search engine and carries the risk that links to information with a legitimate public subject will be removed too quickly. This constitutes a too great obstacle to the right to freedom of expression and information.
If the applicant submits information showing that (a significant part of) the content of the original publication is incorrect, the search engine must of course remove the links to those publications from its search results. On the other hand, if the inaccuracy of the original publication is not apparent, then the search engine does not have to remove the link to the publication. If the publication touches on public debate, extra weight should be given to the right to freedom of expression.
Duty to warn?
The search engine must however, if it knows that legal proceedings are pending over the inaccuracy of information in linked content, include a warning in the search results about the existence of those proceedings so that internet users are aware thereof.
Removal of the link to a negative review of a health care provider?
Not much later, the District Court of The Hague ruled on a negative review that had appeared online about an oral surgeon. The oral surgeon claimed that the review was fake and that the publicist had probably never been treated by him. The only thing he argued in support of his claim was that the review mentioned the presence of an assistant but that he did not have an assistant at the time the review was posted. The oral surgeon did not substantiate his claim any further.
The District Court of The Hague found this motivation of the oral surgeon- in the context of the burden of proof outlined by the Court of Justice – too little to assume the review was fake. The court found that the doctor could have done more to present reasonable evidence that this was a fake review. For example, the doctor could have tried to contact the publicist – through the website on which the review was posted. The doctor had not used that route. Therefore, the link to the review did not need to be removed.