The right to be forgotten - recent updates for navigating the freedom of information

In the judgment of the European Court of Justice in case c-460/20, the CJEU considered the "right to be forgotten", deciding that the operator of a search engine must remove information found in the referenced content where such information is proven to be manifestly inaccurate.

In this case, two managers of a group of investment companies requested that Google de-reference results of a search of their names which provided links to certain articles criticising that group’s investment model. They also asked that Google remove "thumbnail" photos of them which were taken out of the original context of the image’s publication. They maintained that the articles contained inaccurate claims.

Google refused to comply with these requests, arguing that it was unaware whether the information contained in the articles was accurate or not.

The dispute was brought before the German Federal Court of Justice, who asked the European Court of Justice (CJEU) to provide an interpretation of the EU GDPR which governs the right to erasure, sometimes also referred to as the "right to be forgotten", as well as the directive on the protection of individuals with regard to the processing of personal data read in light of the Charter of Fundamental Rights of the European Union.

The CJEU considered the right to protection of personal data, maintaining that it 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 principal of proportionality. The GDPR expressly provides that the right to the erasure is excluded where processing is necessary for the exercise of the right of information.

The court’s judgement held that the data subject’s rights to protection of private life and protection of personal data override, as a general rule, the legitimate interest of internet users who may be interested in accessing the information in question. That balance may, however, depend on the relevant circumstances of each case, in particular, on the nature of that information and its sensitivity for the data subject’s private life, and on the interest of the public having that information. That interest may vary according to the role played by that person in public life.

The right to freedom of expression and information cannot be taken into account where, at the very least, a part of the information found in the referenced content proves to be inaccurate. To implement this, the court maintained that:

• It is for the person making the removal request to establish the manifest inaccuracy of the information and

• The applicable search engine must also take into account all rights and interests involved in the circumstances of the case, in order to determine whether the content may continue to be included in the list of search results.

Therefore, where a person who has made a request for removal of information submits relevant and sufficient evidence capable of proving manifest inaccuracy and substantiating his or her request to remove the information, the operator of the search engine is required to comply with that request.

The court did note that a request is further supported where that person submits a judicial decision making a finding of inaccuracy, however they also clarified that the requestor does not necessarily need to go so far as to obtain a court order against the website publisher. This decision has been welcomed, as such a requirement would have created a prohibitive expense and time involved in starting proceedings against a publisher and obtaining an order.   

The court also considered the display of photos in the form of thumbnails, concluding that when the search engine receives a request for removal of a photo displayed in this way, it must ascertain whether displaying those photos is necessary for exercising the right to freedom of information of internet users. Again, the competing rights must be balanced, and account must be taken of the information value of those photos against the individuals right to protection of personal information.

This case is obviously a European decision, and UK courts are not bound to follow it. However, EU and UK laws are currently closely aligned on this topic, so we may find that UK courts consider this decision when interpreting and enforcing the right to be forgotten in the UK.