Removal of links even without a judgment - new obligations for web publishers and creators?

One of the most recent, December rulings of the Court of Justice of the European Union ("CJEU") in the high-profile case against Google LLC, settled the questionable issue of the so-called right to be forgotten[1]

According to the CJEU's, as expressed in its judgment of 8 December 2022 in Case C-460/20, anyone has the right to require a search engine (in this case Google) to remove links to articles or other content with false information from search results. The only condition is to prove that the information contained in the link is demonstrably false. Such proof, however, does not have to result from a court decision addressed to the publisher of the website in question.

Subject of the CJEU judgment

In the above-mentioned case, members of a group of investment companies asked Google to remove links to articles that negatively assessed the group's investment model, as well as links to their thumbnail images ("thumbnails"), from its search results.

Google, however, refused, indicating that it was not known whether the information contained in the disputed articles was true or not.

The case was referred to the German Federal Court, which then introduced two questions to the CJEU.

CJEU's position

In its December judgment, the CJEU emphasized that the right to the protection of personal data is not an absolute right, but must be seen in the context of its social function, in accordance with the principle of proportionality and balanced against other fundamental rights. At the same time, the CJEU pointed out that the Data Protection Regulation expressly provides that the exercise of the right to erasure is excluded when the processing is necessary for the exercise of, inter alia, the right to freedom of information.

However, the right to freedom of expression and information cannot be taken into account if at least part of the information contained in the linked content, which is not of little relevance to the content as a whole, turns out to be false.

What must be demonstrated in order for the search engine to remove the links?

As the CJEU points out, it is up to the person requesting the removal of the links to demonstrate the manifest falsity of the information contained in the content, or at least that part of that information which is not insignificant in relation to the content as a whole.

However, in order to avoid imposing on that person an undue burden capable of undermining the effectiveness of the right to have the links removed, he must provide only such evidence as may reasonably be required of him in the circumstances of the case in order to demonstrate that manifest falsity. That evidence, the CJEU accepts, is to be 'relevant and sufficient'.

In doing so, the Court emphasizes that the person seeking the removal of links cannot, as a general rule, be required to produce, at the pre-litigation stage, a judicial decision addressed to the publisher of the website in question.

Given the position of the CJEU, it is therefore sufficient that the person requesting the removal of the links presents relevant and sufficient yet available evidence proving the falsity of the information (or part of it) and the search engine should grant his request.

Rights and duties of the search engines

As emphasized by the CJEU, where the falsity of the information contained in the linked content does not appear to be obvious in the light of the evidence provided by the person requesting the removal of the links, the search engine will not be obliged to grant such a request, unless there is a court decision in the case.

Notwithstanding this, the Court noted that where a search engine is informed of pending judicial or administrative proceedings concerning the content available on the search engine and its potential falsity, it should inform internet users by adding an appropriate warning to the search results.

What if the search engine does not remove the links?

The CJEU has also provided tools to enable the person requesting the removal of links to enforce this obligation. If, despite demonstrating the falsity of the information contained in the links, the search engine does not remove them, the person making the request may apply to a supervisory authority or a judicial authority for them to carry out the necessary review and order the search engine to adopt appropriate measures.

What about thumbnail images - 'thumbnails'?

With regard to the request for removal of thumbnail images, the Court held that, a search engine must verify whether their display is necessary for the exercise of the Internet user's right to freedom of information. In balancing this right and the right to privacy, it is necessary, according to the CJEU, to consider the contribution to public debate, which is a crucial factor, as well as their informational value.

What does the CJEU judgment mean for online publishers and creators?

Although the judgment commented on applies to search engines such as Google, the CJEU's position may also apply to other online actors, including publishers and creators, who may become the addressees of similar demands, even before legal proceedings are initiated.

The obligations of search engines such as Google referred to in the Court's judgment can certainly also directly affect content and articles published online. In particular, the removal of links from search engines will affect the visibility of the publication and, consequently, also its reach or display statistics.

The CJEU judgment illustrates a trend where the so-called 'right to be forgotten' is in many cases becoming an overriding value, and people who care not only about protecting their personal data, but also their privacy or image online, are gaining new, additional tools to enforce their rights and freedoms.