Right to be forgotten: Google will have to remove inaccurate content

Written 8 Dec. 2022 at 17:41

How can the right to be forgotten and free access to information be reconciled? After two years of work, the European Court of Justice handed down a ruling on Thursday that could potentially force Google to disregard the contents of its search engine when these are… patently inaccurate.

The case that the judges in Luxembourg examined did not lack spice. In 2015, a couple at the head of two investment firms, I-Group and P-Emission, asked Google to remove three critical articles from a website that immediately stood out in Google searches associated with their names or for their companies. According to them, these articles were defamatory and full of errors.

In addition, one of the articles from 2015 also showed the complaints on board a convertible, in front of a plane, in a helicopter cabin… The couple therefore also asked Google to remove these thumbnails, which were taken out of context.

Compromising images

The matter could have ended there. Except that the website in question had a sulphurous reputation. In the fight against fraud, the site (its name has been masked in court documents) was in fact extortion: it published malicious articles and potentially compromising photos and then offered the targeted companies to remove this content for a sum of money.

At the time, Google refused to remove the content in question, saying it was not up to it to judge whether it was true or false. The German Federal Court then took up the case. In 2020, however, the court had referred the matter to the European Court of Justice for it to rule on the matter, particularly with regard to the GDPR, the European Regulation on the Protection of Personal Data.

In its decision, however, the European Court of Justice upheld both claimants. The right to be forgotten and to data protection is admittedly not absolute. In some cases, the free access to information may even take precedence, for example when it comes to the words of a public figure. But not when it comes to inaccurate information.

If the internet user has “relevant and sufficient” evidence, then “the search engine operator must refer to information that appears in the referenced content”, writes the Court in its press release. “From a theoretical point of view, it is an important judgment because it establishes the right to delisting,” says Julie Jacob, legal assistant at Jacob Avocats. But until now, Google has always sought refuge behind the free access to information in order not to withdraw the content.

With regard to “thumbnails”, the judges went even further on a topic that concerns everyone: according to them, these images can constitute “a particularly significant interference” in people’s lives. Faced with a removal request, search engines must therefore assess whether these images themselves provide useful information to the public.

Low case law

For the two plaintiffs, the decision does not change much. Meanwhile, Google withdrew the offending content in 2017 and then in 2018. On Thursday, the US giant “welcomed the decision and clarified that it would now “study the text in its entirety”.

But for Julie Jacob, “the judgment will be difficult to implement”. Internet users do not have all the technical, legal or financial skills to prove that information is inaccurate or that an image carries an “interference”… Especially since, on the contrary, the algorithms that arrange the content are relatively opaque.

“Every time, in cases about the right to be forgotten, it is necessary to conduct legal proceedings because Google is against delisting. An amicable solution does not work. There is therefore a risk of a two-speed trial” laments the lawyer. But the situation can change with the European DSA and DMA, which should lead to greater transparency of the algorithms.

Leave a Comment