The Advocate General of the European Court G. PITRUZZELLA has issued an opinion in the case C‑460/20 TU,RE v Google LLC. This case has the following background:
TU works in a position of responsibility or is involved, in various companies which provide financial services. RE was TU’s cohabiting partner and, until May 2015, held general commercial power of representation in one of those companies. On 27 April 2015, 4 June 2015 and 16 June 2015, the website http://www.g … net (‘the g-net website’) published three articles which expressed critical opinions and doubts as to the reliability of the investment model of several of those companies. The article dated 4 June 2015 also featured four photographs – three of TU and one of RE – in which the applicants were shown driving luxury cars, in a helicopter and in front of a charter plane. Together with the articles, those images suggested that the applicants were enjoying a life of externally financed luxury. The operator of the g-net website is G-LLC, according to the imprint. The corporate purpose of G-LLC is, according to its own statement, ‘to contribute consistently towards fraud prevention in the economy and society by means of active investigation and constant transparency’. However, various publications have criticised the business model of G-LLC, accusing that company, among other things, of attempting to blackmail companies by initially publishing negative reports and then offering to delete the reports in return for so-called protection money. The articles dated 4 June 2015 and 16 June 2015 were displayed in the list of search results produced when the applicants’ first names and surnames were entered in the search engine operated by Google, both on their own and in conjunction with particular company names, and the article of 27 April 2015 was displayed when particular company names were entered in its search engine. These results contained a link to the articles in question. Google also displayed the photographs of the applicants contained in the article dated 4 June 2015 as thumbnails in the overview of results of its image search.
The applicants requested the defendant, on the one hand, to de-reference the articles in question, which, in their view, contain a number of incorrect allegations and defamatory opinions based on false statements, and, on the other, to remove the thumbnails from the list of search results. They claimed to have been victims of blackmail by G-LLC. The defendant refused to comply with that request, referring to the professional context in which the articles and images at issue are set and invoking its ignorance as to the allegedly false nature of the information contained therein. The action was dismissed at first and second instance.
It is in that context that the Federal Court of Justice decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Is it compatible with the data subject’s right to respect for private life (Article 7 of the Charter …) and to protection of personal data (Article 8 of the Charter), 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 or her request for de-referencing brought against the data controller of an internet search engine, pursuant to Article 17(3)(a) of [the GDPR], when the link, the de-referencing of which the applicant seeks, 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 list of 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, first paragraph, point (a) of Directive [95/46] and 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?’
The Advocate’s opinion:
Article 17(3) 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 (General Data Protection Regulation) should be interpreted as meaning that, within the context of the weighing-up of conflicting fundamental rights arising from Articles 7, 8, 11 and 16 of the Charter of Fundamental Rights fo the European Union, which is to be undertaken within the scope of the examination of a request for de-referencing made to the operator of a search engine on the basis of the alleged false nature of the information which appears in the referenced content, it is not possible to concentrate 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. In the context of such a request, it is incumbent on the data subject to provide prima facie evidence of the false nature of the content the de-referencing of which is sought, where that is not manifestly impossible or excessively difficult, in particular with regard to the nature of the information concerned. It is for the operator of the search engine to carry out the checks which fall within its specific capacities, contacting, where possible, the publisher of the referenced web page. Where the circumstances of the case so indicate in order to avoid irreparable harm to the data subject, the operator of the search engine will be able temporarily to suspend referencing, or to indicate, in the search results, that the truth of some of the information in the content to which the link in question relates is contested.
Article 12(b) and Article 14, first paragraph, point (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 and Article 17(3)(a) of Regulation 2016/679 should be interpreted as meaning that, within the context of the weighing-up of conflicting rights and interests arising from Articles 7, 8, 11 and 16 of the Charter of Fundamental Rights, in connection with a request for de-referencing made to the operator of a search engine seeking to obtain the removal, from the results of an image search carried out on the basis of a natural person’s name, of photographs displayed in the form of thumbnails depicting that person, account should not be taken of the context of the publication on the internet in which those thumbnails originally appear.
INTELLECTUAL PROPERTY PLANET 