The CJEU has clarified what individuals must prove in order to exercise their "right to be forgotten" and have inaccurate search engine results de-referenced.
If you are the subject of false or inaccurate reporting online, one of the most damaging and distressing consequences can be the effect this has on search engine results.
False information published on an obscure blog or website can be amplified enormously if it appears of the first page of a Google search. This can cause serious reputational damage.
Under the UK GDPR, individuals have a right to request that their personal data be erased. This is commonly known as the 'right to be forgotten'.
One of the most useful aspects of the right to be forgotten is the fact that individuals can request that material published about them online which is inaccurate or historic be removed from the search results of Google and other search engines (a process known as de-listing or de-referencing).
This can be much quicker and cheaper than seeking the removal of the inaccurate information from website on which it was published (for example through a defamation claim).
In a helpful judgment, the Court of Justice of the European Union (CJEU) has clarified the circumstances in which Google and other search engines must remove search results which a user complains are inaccurate.
The case concerned two executives who were involved with a group of investment companies. In 2015, three articles were published on a website which criticised the investment model of the group of companies. One of the articles was illustrated with photographs of the executives with luxury cars, a helicopter and an aeroplane.
When the executives' names were searched on Google, links to the articles were displayed, as well as thumbnail images of the photographs accompanying the articles.
The executives sought to have the search results delisted on the grounds that the articles contained inaccurate and defamatory claims. Google refused, arguing that it was unaware of the alleged inaccuracy of the information in the articles. The executives brought a claim against Google in Germany. The German Federal Court of Justice referred the matter to the CJEU for guidance on how to apply the right to be forgotten and balance it with the right to freedom of expression and information.
The CJEU held that a person requesting de-referencing of content on grounds of inaccuracy must establish "the manifest inaccuracy of the information" in question. However, in order to avoid imposing an excessive burden on individuals, the requestor only has to provide "evidence that, in the light of the circumstances of the particular case, can reasonably be required of him or her to try to find in order to establish that manifest inaccuracy".
Importantly, the CJEU confirmed that a requestor cannot be required to produce a court judgment against the publisher of the website in question in order to prove the inaccuracy, as such a requirement would impose an unreasonable burden on individuals.
In determining the request, the search engine operator must take into account all the rights and interests involved and all the circumstances of the case, but it "cannot be required to play an active role in trying to find facts which are not substantiated by the request for de-referencing". That is, the operator does not need to investigate the facts itself or mediate between the content provider and the requestor.
The decision confirms that as long as the requestor submits relevant and sufficient evidence which substantiates the request and establishes the manifest inaccuracy of the information, the search engine operator must comply with the request. This is a welcome decision. While it suggests that requestors must meet a relatively high evidential threshold to establish inaccuracy, they do not need to go so far as to obtain a court order against the website publisher. Such a requirement would in practice have amounted to a significant watering down of the right to be forgotten, given the often prohibitive expense and time involved in starting proceedings against a publisher and obtaining an order.
While UK courts are not bound to follow decisions of the CJEU, they are likely to have regard to this decision when interpreting and enforcing the right to be forgotten, given how closely the UK GDPR reflects its EU precursor.