TU and RE were directors and shareholders of investment companies

Facts — TU and RE were directors and shareholders of investment companies. Three articles were published in the news criticizing their companies and showing pictures of TU and RE suggesting a luxury lifestyle. These articles were accessible upon research of their names in Google. TU and RE requested Google, as controller to de-reference the links to the articles from the list of search results when researching their names. Google refused to comply with this request. TU and RE therefore brought an action with the Landgericht Köln (Regional Court Cologne) to have the Court order Google to de-reference. They argued among other things that the articles contained inaccurate claims and defamatory opinions. After the dismissal of their action in first instance, TU and RE filed an appeal with the Oberlandesgericht Köln (Higher Regional Court Cologne). This appeal was also dismissed. TU and RE appealed this second decision with the Bundesgerichtshof (Federal Court) which referred two questions to the CJEU.

Oskar J. Gstrein summarized these questions as follows : "How should courts handle requests for de-referencing in cases where applicants claim that the information presented by a news outlet are inaccurate, and in which the legality of the publication depends on whether the claims are factually true? Is there an obligation of search engine providers such as Google to delete thumbnails from search engine results, even if the results contain a link to the original source?" Holding — For the first question, the Court explained that the processing by the search engine (in this case Google) constitutes a processing of personal data and must be distinguished from the publication on the website. The Court then recalled that the right to data protection is not absolute and must be balanced with the right to freedom of expression. In this context, the Court held that it is to the person requesting de-referencing to establish the manifest inaccuracy of the information.

The search engine cannot be required to assess the accuracy of the information published in order to handle a request on the basis of Article 17(3)(a) GDPR. The Court concluded that "de-referencing is not subject to the condition that the question of the accuracy of the referenced content has been resolved, at least provisionally, in an action brought by that person against the content provider.". For the second question, the Court held a similar reasoning. It considered that search engines must operate an assessment when displaying and using images and take into account the informative value of such images. Holding — For the first question, the Court explained that the processing by the search engine (in this case Google) constitutes a processing of personal data and must be distinguished from the publication on the website. The Court then recalled that the right to data protection is not absolute and must be balanced with the right to freedom of expression.

In this context, the Court held that it is to the person requesting de-referencing to establish the manifest inaccuracy of the information. The search engine cannot be required to assess the accuracy of the information published in order to handle a request on the basis of Article 17(3)(a) GDPR. The Court concluded that "de-referencing is not subject to the condition that the question of the accuracy of the referenced content has been resolved, at least provisionally, in an action brought by that person against the content provider.". For the second question, the Court held a similar reasoning. It considered that search engines must operate an assessment when displaying and using images and take into account the informative value of such images. Comment — It is interesting to note that thumbnails and photographs can be object to a de-referencing request.