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24 février 2017

Right to be delisted

The Conseil d’Etat has requested the European Court of Justice for a preliminary ruling on a series of questions concerning the implementation of the right to be delisted.

> read the decision in french

Key points

  • Various applicants have lodged an appeal asking the Conseil d’Etat to quash (rule as ultra vires) a number of decisions made by the Commission nationale de l’informatique et des libertés (National Commission of Information Technologies and Liberties, CNIL) by which this public agency had rejected their complaints aimed at removing the results proceeding from their name search on the Google search engine.
  •  The right to be delisted has been judicially recognised by the European Court of Justice, particularly in its Google Spain judgment delivered on May 13th, 2004. It requires the operator of a search engine to remove links to web pages published by third parties and containing information relating to that person from the list of results, displayed following a search made on the basis of a person’s name.
  • The implementation of the right to be delisted in the cases that were submitted to the Conseil d’Etat raise a number of serious difficulties concerning the scope of the EU Directive of October 24th, 1995 on the protection of individuals with regard to the processing of personal data, read in the light of the interpretation given by the European Court of Justice in its Google Spain case. Prior to settling these cases, the Conseil d’Etat has decided to refer to the European Court of Justice for a preliminary ruling.

Facts and legal procedure

In its Google Spain judgment of May 13th, 2014, the European Court of Justice has decided that the EU Directive 95/46/EC of October 24th, 1995 on the protection of individuals with regard to the processing of personal data and on the free circulation of such data, implied that any person has the right to request and obtain the removal of links to freely accessible web pages resulting from a search on their name. This was held to mean that the operator of a search engine must, based on an individual request, remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person. However, this right to be delisted, judicially proffered, does not imply the removal of the content displayed on the web pages on which they were published.

Nevertheless, the right to be delisted is not absolute. Insofar as the removal of links from the list of results displayed following a search made on the basis of a person’s name may have consequences on the legitimate interest of internet users to receive access to information, the European Court of Justice proceeds to strike a balance between such interest and the person’s fundamental rights, in particular the right to private life and to the protection of personal data.

The four applicants before the Conseil d’Etat had requested the Google Company to remove the links from the list of results displayed following a search made on the basis of their names, which contained information relating to them. Following that company’s refusal, they had applied to the CNIL for this agency to deliver an injunction to proceed to the aforementioned removals. The CNIL having rejected their application, they lodged an appeal before the Conseil d’Etat, so as to have the decisions of the CNIL being quashed.

These requests were aimed at removing links relating to various pieces of information : a video that explicitly revealed the nature of the relationship that an applicant was deemed to have entertained with a person holding a public office ; a press article relating to the suicide committed by a member of the Church of Scientology, mentioning that one of the applicants was the public relations manager of that Church ; various articles relating to criminal proceedings concerning an applicant ; and articles relating the conviction of another applicant for having sexually aggressed minors.

The judgment delivered by the Conseil d’Etat

In order to rule on these claims, the Conseil d’Etat has deemed necessary to answer a number of questions raising serious issues with regard to the interpretation of European law in the light of the European Court of Justice’s judgment in its Google Spain case. Such issues are in relation with the obligations applying to the operator of a search engine with regard to web pages that contain sensitive data, when collecting and processing such information is illegal or very narrowly framed by legislation, on the grounds of its content relating to sexual orientations, political, religious or philosophical opinions, criminal offences, convictions or safety measures. On that point, the cases brought before the Conseil d’Etat raise questions in close connection with the obligations that lie on the operator of a search engine, when such information is embedded in a press article or when the content that relates to it is false or incomplete.

Having ruled that it was not empowered to judge on these matters prior to a preliminary ruling by the European Court of Justice, the Conseil d’Etat has decided to suspend its judgment and refer the questions to that Court. It will not be until the European Court of Justice has given its preliminary ruling and answered the questions submitted by the Conseil d’Etat that the latter will rule on the applicants’ requests.

The preliminary ruling procedure is a mechanism which allows a national judge to submit questions to the European Court of Justice, on the interpretation or validity of a European law provision applicable to the case at stake.

> read the french press release