The right to be forgotten was introduced in the Google/Costeja judgement of 13 May 2014. In response, Google created a request form for individuals to request the removal of specific search results that appear when their name is searched on in Google’s search engine. Since then, nearly one million removal requests have already been submitted to Google regarding approximately four million search results. Almost half of these have actually been removed by Google. Thus, submitting a removal request can pay off. But under what circumstances can a removal request be successful? And which elements are important?
Conflicting fundamental rights
When the removal of certain search results is requested, in most cases a balance must be struck between conflicting fundamental rights. The right to privacy and the right to the protection of personal data of the data subject (the person who the search results are about) clash with the freedom of expression and information of the search engine and internet users.
In principle, fundamental rights carry equal weight. Nevertheless, in situations where a data subject requests a search engine to remove links to search results that appear when his or her name is searched, there seems to be a kind of ranking between the aforementioned fundamental rights.
When internet users search for the name of a natural person with the help of a search engine, the list of results makes it possible to obtain a structured overview of the information about this person that can be found on the internet. That information obtained potentially relates to numerous aspects of the private life of the person in question, whereas without this search engine, that information would not have been able to be linked or would have been very difficult to link.
Thus, the results list of a search engine more or less enables internet users to establish a detailed profile of a data subject when his or her name is searched upon.
Based on the foregoing, the Court of Justice of the European Union (“CJEU”) ruled in the Google/Costeja case that the privacy interests of the data subject in principle override, not only the economic interests of the operator of the search engine, but also the interest of the general public in finding that information upon a search relating to the data subject’s name. This principle may only be deviated from for particular reasons, such as when the data subject plays a role in public life. Usually, it is up to the operator of the search engine to demonstrate these particular reasons. The Dutch Supreme Court confirmed this principle in its X/Google judgement of 24 February 2017.
At the time, the Google/Costeja case was widely criticized, because it allegedly took insufficient account of the freedom of expression and information of Google and internet users. In the GC/CNIL case, that was decided later, the CJEU therefore somewhat refined its earlier position from the Google/Costeja case.
With reference to the General Data Protection Regulation (which was not yet in force at the time of Google/Costeja), the CJEU chose not to give standard priority to the rights of the data subject over the rights of search engines and internet users. This nuance seems to be prompted, in particular, by the important social function that search engines fulfil in the distribution and accessibility of information on the internet. Restraint should therefore be exercised in imposing restrictions on search engines and thus in complying with removal requests from data subjects.
Although in GC/CNIL the CJEU does not seem to have completely abandoned the in Google/Costeja formulated order of precedence between the fundamental rights, more room is left to weigh up the freedom of information of internet users when weighing alle the interests involved.
When determining, in a specific case, whether certain links to search results should be removed from the list of results when a person’s name is searched, all the relevant circumstances of the case must be weighed against each other at the same time.
On that basis it is then determined which fundamental right prevails in a specific situation and whether the links to the search results must be removed or not. In case law we see a number of fixed elements recurring when judges have to assess which interests outweigh the other interests in a particular case. Among other things, the following are considered:
- the nature and sensitivity of the information in the search results.. To what extent is the information harmful or detrimental to the data subject? Are special or sensitive personal data involved?
- the age of the data subject. Is the data subject a minor or an adult?
- the extent to which the information is recent, relevant and (not) excessive. Is it old information or is it still relevant today?
- the context and manner in which the information is presented. Is the information presented as an opinion or a fact? Is there only negative information or also positive information?
- the role the data subject plays in public life. Is the data subject famous? Does the data subject hold a public office?
- the behaviour of the data subject in the past. Has the data subject sought publicity himself?
- the interest of internet users in having access to the information. Is it a private matter or is the information relevant for society?
Because all these elements are weighed against each other, it is not always easy to estimate in advance how the balancing test will turn out in a specific case. Judges also do not always clearly motivate why they consider certain elements more important than others. Case law in this area is therefore very casuistic.
Furthermore, please note that in cases where a search engine executes a removal request, it generally only deletes the links to one or more underlying web pages that appear in the search results list when searching for a person’s name.
Thus, the links in question are not completely removed from the search engine’s index or cache memory.
This means that the underlying web page can still be found in the relevant search engine when other search terms are used. The information can also still be found when surfing directly to the underlying webpage. The term ‘right to be forgotten’ is therefore somewhat misleading. If a data subject would like to have specific information removed from the internet completely, then in most cases it will not be sufficient to appeal to the search engine, but the administrator of the underlying webpage will also have to be approached.
Moreover, the end does not always justify the means. If a data subject wants to ensure that certain information is ‘forgotten’, it is not always wise to take legal action. After all, case law is public and the opposite effect can be achieved, namely generating extra attention. Therefore, be well advised in advance about possibe legal action to be taken against search engines and website owners/administrators.